Citation Nr: 1032192 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 07-27 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 10 percent for scars of the left arm, face, and back of the head. 2. Entitlement to service connection for headaches due to traumatic brain injury (TBI). 3. Entitlement to service connection for residuals of traumatic brain injury, excluding scars and headaches. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant had active service from July 2003 to July 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2009, the Board remanded the claim for further development. Since the Board's remand, the RO, in a decision of March 2010, granted a higher initial rating, to 10 percent, for scars of the left arm, face, and back of the head. Since this claim has not been withdrawn, an increased rating above 10 percent remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). At the time of the remand the issue of service connection for nerve damage to the right upper extremity was also before the Board. Since the Board's remand, the RO, in a decision of March 2010, granted service connection for nerve damage to the right arm due to shrapnel. As the benefit sought on appeal has been granted, the issue is no longer before the Board. The Board has recharacterized the issues on appeal in light of Esteban v. Brown, 6 Vet. App. 259 (1994) (separate ratings may be for assignment where there are different functional impairments) and Clemons v. Shinseki, 23 Vet. App. 1 (2009)(the scope of a disability claim includes any disability which may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issue of entitlement to service connection for residuals of traumatic brain injury, excluding scars and headaches, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At all periods during the course of the appeal, the Veteran's scars of the left arm, face, and back of the head have been manifested by a subcentimeter scar with small palpable metal fragment that is tender to palpation on the left occipital area of the scalp and, at most, a 3 X 1 centimeter well-healed shrapnel scar on the anterior surface of the left mid-forearm, altogether measuring less than 6 square inches (39 square centimeters), with no evidence of adherence to underlying tissue, underlying soft tissue damage, elevation, depression, or instability of the scar or other disabling effect. 2. The Veteran's current headaches are a result of a TBI incurred in Iraq in February 2005 when the HUMVEE in which the Veteran was riding as a gunner was attacked by a "parachute grenade" which exploded, knocking the Veteran unconscious. CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for scars of the left arm, face, and back of the head with retained shrapnel have not been 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, 4.10, 4.118, Diagnostic Code 7805 (2009). 2. The Veteran's headaches are the result of a TBI incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claim for a higher initial rating for scars of the left arm, face, and back of head arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, like a higher initial rating, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. As the Veteran's headache claim is being granted, no discussion of the VCAA is necessary for those claims. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished with respect to the issues decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained service treatment records and VA treatment records. The Veteran has also been afforded VA skin (scars) examinations in February 2007 and July 2009. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that these examinations are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The 2009 scars examination adequately addressed the rating criteria for scars and took into account the Veteran's history. Accordingly, the Board finds that the AMC substantially complied with the remand actions ordered in the June 2008 Board remand with respect to the scars claim. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims herein decided. II. Analysis When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). A. Higher initial evaluation for scars of the left arm, face, and back of the head Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a Veteran's disagreement with the initial rating assigned at the time a disability is service-connected. Accordingly, where the question for consideration is the propriety of the initial rating assigned, as here, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged ratings" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See id. at 126-27. Further, in determining the appropriate disability rating, the Board must consider whether the case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The scars are rated 10 percent disabling under Diagnostic Code 7805. The Board has considered whether a higher evaluation is warranted for the scars. See 38 C.F.R. § 4.118, DCs 7801-7805. At all periods during the course of the appeal, the Veteran's scars of the left arm, face, and back of the head have been manifested by a subcentimeter scar with small palpable metal fragment that is tender to palpation on the left occipital area of the scalp and, at most, a 3 X 1 centimeter well-healed shrapnel scar on the anterior surface of the left mid-forearm, altogether measuring less than 6 square inches (39 square centimeters), with no evidence of adherence to underlying tissue, underlying soft tissue damage, elevation, depression, or instability of the scar or other disabling effect. In this regard, as the Veteran's scars of the left arm, face, and head do not cover an area of at least 6 square inches (39 square centimeters), or meet any other of the characteristics of disfigurement, a higher rating is not warranted under DCs 7801 or 7802. Therefore, there is no indication of any instability of the scar such that a higher rating would be warranted under DC 7804. The evidence also shows that there is only one scar with pain on palpation, so the higher evaluation under Diagnostic Code 7804 for pain in three or four scars is not met. The 2009 examiner denied any other disabling effects due to the scars themselves to warrant a higher rating under DC 7805. After a thorough review of the lay and medical evidence of record, the Board finds no basis upon which to assign an evaluation in excess of the currently assigned rating for the Veteran's scars of the left arm, face, and back of the head with retained shrapnel under any alternate code. See Schafrath, 1 Vet. App. at 593. Additionally, staged ratings are not appropriate, as the manifestations of the scars have remained relatively stable throughout the course of the appeal. See Fenderson. Further, as discussed below, referral for extra- schedular consideration is not warranted. The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted under such provision if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. In this regard, the Board has carefully compared the level of severity and symptomatology of the Veteran's scars with retained shrapnel with the established criteria found in the rating schedule. The Veteran reported during his 2009 scars examination that he works in construction and that when he wears a hard hat it presses on the area of his scalp where the retained shrapnel fragment is located. He reported in a 2007 VA examination that he did not lose any time from work as a result of his scars. He has reported that he is working full-time. As discussed in detail above, the Veteran's symptomatology, like the pain he describes with pressure on the area of the scar on his head, is fully addressed by the rating criteria under which such disabilities are rated, and there are no symptoms of such disabilities that are not addressed by the rating schedule. As such, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his claimed disability and, therefore, the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, there is no indication of periods of hospitalization with respect to any of the claimed disability. Therefore, the Board finds that a referral for consideration of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not necessary with respect to the issue on appeal. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). B. Service connection for headaches Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Service treatment records show that on February 26, 2005 when the Veteran was riding in a convoy as a HUMVEE gunner, a pedestrian threw a "parachute grenade" which exploded on the passenger front of the HUMVEE. The Veteran was knocked unconscious and received shrapnel wounds. He was awarded the Purple Heart medal for wounds received as a result of enemy action. A June 2010 VA neurologist concluded, following a neurological examination, that "[i]t is as likely as not that the patient's headaches are the result of a traumatic brain injury in February 2005." Accordingly, the Board finds that service connection is warranted for headaches stemming from the February 2005 TBI in service. ORDER An evaluation in excess of 10 percent for the service-connected scars of the left arm, face, and head is denied. Service connection for headaches due to TBI is granted. REMAND The Veteran's initial claim for benefits included disabilities arising from shrapnel in the head. His March 2007 notice of disagreement requested VA compensation for residuals of a shrapnel wound to the back of the head, including pain, headaches, poor concentration, and difficulty with employment and daily life. The 2009 remand in this case requested VA examination to ascertain the current nature and severity of any residuals stemming from his shrapnel wound to the back of the head, including a neurological examination. The Court has held that separate ratings may be for assignment where there are different functional impairments. See Esteban v. Brown, 6 Vet. App. 259 (1994). The remand requested that the AMC consider Esteban when readjudicating the claim. A neurological examination was provided in June 2010. The most recent supplemental statement of the case was issued in February 2010 and did not address the issues raised in Esteban. 38 C.F.R. § 19.37. Accordingly, another remand is necessary to ensure that this combat Veteran is adequately compensated for all his service-connected disabilities. With respect to the residuals of a head injury, other than scars or headaches, the Board finds that there has been a change in the law that potentially will benefit the Veteran. In this respect, the Board notes that the regulations concerning the evaluation of traumatic brain injury were amended during the pendency of this appeal. See 73 Fed. Reg. 54693 (September 23, 2008). The revised diagnostic criteria are found at 38 C.F.R. § 4.124a, Diagnostic Code 8045. The relevant rating criteria allow for evaluations (to include separate evaluations) based on cognitive, emotional/behavioral, and physical dysfunction. Here, the record reflects several reports that the Veteran was medevaced and hospitalized in service for observation following the February 2005 TBI. Records of the initial February 2005 treatment, including a period of hospitalization for observation, are not included in the service treatment records in the claims folder. Attempts should be made to develop these records. Thereafter, the Board finds that a VA examination is warranted wherein any and all residuals of TBI should be evaluated. The Board notes, however, that while the revised rating criteria may provide for more accurate clinical findings regarding the residuals of a head injury, the revised rating criteria may not be effective prior to October 23, 2008. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note 5. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran in order to request that he identify the dates and locations of his in-service treatment, including where he received his inpatient treatment/period of observation, following his TBI in February 2005 in Iraq. Regardless of the Veteran's response, the RO should obtain all outstanding service treatment records, including inpatient treatment records dated in February/March 2005 and associate them with the claims file. 2. Afford the Veteran a VA TBI examination to determine the current level of impairment due to the traumatic brain injury sustained in 2005. In evaluating the Veteran, the examiner should consider the three main areas of dysfunction listed in the revised rating criteria (see 38 C.F.R. § 4.124a (effective October 23, 2008)) that may have resulted from the Veteran's traumatic brain injury: cognitive, emotional/behavioral, and physical. If deemed necessary, additional evaluation in one or more of these areas of dysfunction should be obtained in order that there may be a complete picture of the Veteran's residuals of a traumatic brain injury. The claims folder should be made available to the examiner. 3. After the development requested has been completed, re-adjudicate the claim for service connection for residuals of TBI, excluding scars and headaches. If any benefit sought on appeal remains denied, furnished the Veteran and his representative a supplemental statement of the case and return the case to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or by the Court 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). ______________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs