Citation Nr: 1032828 Decision Date: 08/31/10 Archive Date: 09/08/10 DOCKET NO. 07-24 584 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to a separate rating for residual scars of a spontaneous pneumothorax. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1946 to August 1948, and from November 1950 to August 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision, in which the RO increased the rating for the Veteran's right lung disability to 10 percent. In August 2009, the case was remanded for additional notice and development to include a determination as to whether a separate rating for surgical scarring was warranted under Esteban v. Brown, which held that a veteran is entitled to separate ratings for each residual arising from a single disability if none of the symptomology for one condition is duplicative or overlapping with that of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The RO, however, failed to adjudicate this issue and, in June 2010, the issue was remanded by the Board yet again so that the Veteran might receive a supplemental statement of the case (SSOC) which addressed the issue presently before the Board. Please note 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). FINDING OF FACT Throughout the rating period on appeal, the Veteran's residual scars of a spontaneous pneumothorax have not been manifested by deep scarring; there is no showing that the scars are poorly nourished, tender and painful, unstable, or painful on examination, nor do they cover an area of 6 square inches (39 sq. cm.) or cause any limitation of function. CONCLUSION OF LAW The criteria for a separate compensable rating for residual scars of a spontaneous pneumothorax have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.10, 4.14, 4.118, Diagnostic Codes 7801-7805 (effective prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in an August 2006 pre-rating letter of the information and evidence needed to substantiate and complete his increased rating claim, to include how disability ratings and effective dates are assigned. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, including obtaining VA medical records and providing examinations. As such, the Board finds the record adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). There is not a scintilla of evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. As stated above, the Board remanded the issue on appeal in June 2010 so that the Veteran could be afforded an SSOC. The Board finds that, by adjudicating the issue on appeal in a June 2010 SSOC, VA has substantially complied with the June 2010 Board remand instructions and that, therefore, the issue on appeal is now properly before the Board and ready for adjudication. Dyment v. West 13 Vet.App. 141. II. Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). 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. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the claimant's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files show, or fail to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Board notes that during the pendency of the appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 2008. However, the October 2008 revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). As the Veteran filed his claim in June 2006 and has not specifically request consideration under the new provisions, only the pre-October2008 version of the schedular criteria is applicable. Under the relevant criteria in effect from August 30, 2002, the Veteran's skin disorders may be rated under Diagnostic Codes 7801, 7802, 7803, 7804 and 7805. Diagnostic Code 7801, concerning scars in areas other than the head, face, or neck that are deep or that cause limited motion, affords a 10 percent rating where there is involvement of an area or areas exceeding 6 square inches (39 sq. cm.). Note (1) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial and that do not cause limited motion. Such scars covering an area or areas of 144 square inches (929 sq. cm.) or greater warrants a maximum 10 percent evaluation. Note (1) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7803, for superficial and unstable scars, and Diagnostic Code 7804, for scars that are superficial and painful on examination both warrant a maximum 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804. Diagnostic Code 7805, for other scars, rates based on limitation of motion of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. III. Factual Background and Analysis Procedurally, in a July 1952 rating decision, the Veteran was granted service connection for residuals of a spontaneous pneumothorax of the right lung and assigned a noncompensable disability evaluation. By a January 1961 rating decision, the Veteran's disability evaluation was briefly increased to a 100 evaluation, effective August 16, 1960, to reflect a recurrence of the spontaneous pneumothorax and returned to a noncompensable evaluation, effective February 16, 1961, to reflect the Veteran's recovery. In June 2006, the Veteran asserted that he was entitled to a compensable rating and, in a November 2006 rating decision, the RO assigned a 10 percent evaluation for residuals of a spontaneous pneumothorax of the right lung. The Veteran appealed this decision and, in a June 2010 decision, the Board affirmed the RO's decision that the Veteran was not entitled to a rating in excess of 10 percent for residuals of a spontaneous pneumothorax of the right lung. The Board also, however, found that VA should address whether the Veteran's residual scars warranted a separate evaluation as the symptomatology of his scars could be distinct from the other residuals of his spontaneous pneumothorax of the right lung. Esteban v. Brown, 6 Vet. App. 259 Included in the claims file is the Veteran's August 2006 VA examination in which the Veteran's VA examiner noted that the Veteran had a surgical scar in the right anterior chest which was well healed, non-tender and hardly visible. The Veteran was afforded a second examination in November 2009. During this examination, it was noted that the Veteran's surgical scarring was not deep, did not affect an area of 39 square centimeters, was stable and not painful on examination and did not limit function. As stated above, without disfigurement, limitation of motion, pain on examination of scars or impairment of function, the Veteran cannot receive a compensable rating for superficial scarring. In this case, both of the Veteran's examiners have reported that the evidence of record does not demonstrate the required symptomatology to warrant a separate compensable rating. As noted earlier, where there are wholly different residuals of the same disability, a Veteran can be compensated under separate ratings for each respective residual. Esteban, 6 Vet. App. at 261. In this case, however, the Board finds that the Veteran's symptomology does not warrant additional compensation under a different diagnostic code as the required symptoms for a separate evaluation have not been shown to exist. Accordingly, the preponderance of the evidence is against granting a separate compensable evaluation for residual scars of a spontaneous pneumothorax, and the claim must be denied. In light of the above, remand or referral for an extraschedular rating under the provisions of 38 C.F.R. § 3.312(b) or for a total rating due to individual unemployability (TDIU) is not necessary under the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). See Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to a separate rating for residual scars of a spontaneous pneumothorax is denied. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs