Citation Nr: 1045708 Decision Date: 12/07/10 Archive Date: 12/14/10 DOCKET NO. 07-24 183A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a lower back disorder (claimed as low back pain). 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected residual right groin scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1994 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The claims file was subsequently transferred to the RO in Boston, Massachusetts. The issue of entitlement to service connection for a low back disorder 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 The Veteran's residual right groin scar does not affect more than one extremity, does not involve more than two painful or unstable scars, and does not involve an area exceeding 12 square inches or 77 square centimeters. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for service-connected residual right groin scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7801-04 (2008 and 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's residual right groin scar claim arises from an appeal of the initial evaluation following the grant of service connection in the October 2005 rating decision, the subject of this appeal. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA regarding the Veteran's residual right scar claim. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private treatment and a July 2005 VA examination report. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although there is 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 analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2010); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2009); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2010); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2010). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran filed his claim of service connection for his residual right groin scar in June 2005. The Veteran's residual right groin scar is currently assigned a 10 percent evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board notes that as of October 23, 2008, revised provisions for evaluating scars were enacted; however, this new regulation indicates that the revised provisions are applicable only to claims received on or after October 23, 2008, or where application of the new provisions was expressly requested. The record does not disclose that the Veteran has specifically requested application of the new regulations to be applied in this case; however, the Veteran's representative cited the new regulations in its informal hearing presentation. Accordingly, the Board will discuss entitlement to an increased evaluation under both regulations and apply those most favorable to the Veteran. Under the pre-amended version of Diagnostic Code 7804, a 10 percent evaluation is assigned where the evidence shows scars that are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. The Board notes that the Veteran's residual right groin scar is assigned the maximum assignable evaluation under that Diagnostic Code. Additionally, Diagnostic Codes 7802 and 7803 also only provide for a maximum 10 percent evaluation for scars. Thus, the Board notes that the other potentially applicable Diagnostic Code that would allow a higher evaluation under the old regulations is Diagnostic Code 7801. Under the pre-amended Diagnostic Code 7801, a 10 percent disability evaluation is assigned when a scar, to an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas exceeding 6 square inches (39 square centimeters). A 20 percent disability evaluation is warranted for when it involves an area or areas exceeding 12 square inches (77 square centimeters). A 30 percent disability evaluation is warranted when it involves an area or areas exceeding 72 square inches (465 square centimeters). A 40 percent evaluation is warranted when it involves an area or areas exceeding 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. Thus, in order for the Veteran to get an increased evaluation for his residual right groin scar under the old regulations, the evidence must show that his scar exceeds at least 12 square inches or 77 square centimeters. Based on the objective evidence of record, as discussed in pertinent part below, the Board finds that an increased evaluation is not warranted in this case. In his notice of disagreement, the Veteran indicated his belief that he should be assigned a higher evaluation because there are in fact two scars that are internal and that are painful at all times. He stated that they become more painful with motion. Additionally, the Veteran indicated in his Substantive Appeal that his scars feels like someone is pressing the eraser end of a pencil into his groin, which causes constant pain and discomfort. He indicated that when he does routine motions such as prolonged walking, sitting, bending and picking up items, or wearing a seatbelt, it feels as if the pencil is being pressed down harder, which in turn causes him more pain and discomfort. He stated that he felt that his 10 percent evaluation was not adequate because the Diagnostic Code seemed to imply that the scars only hurt on examination and not all of the time. The Board notes that the Veteran's private treatment records do not indicate treatment at anytime for his right groin scar, or any pain so associated with that scar. The Veteran, however, underwent a VA examination in July 2005. At that time, he indicated that he was working full-time, though he would occasionally miss work due to low back pain. He indicated that he had a cardiac catheterization while on active duty due to his service-connected Wolfe-Parkinson-White Syndrome, and that he was bothered by pain at the incision site of that procedure in his right groin. Upon examination, the Veteran's skin was shown to be of fair complexion and intact. The VA examiner noted a two-centimeter linear scar in the right groin area. There was tenderness over the Veteran's right groin at the cardiac catheterization entry site with a subcutaneous palpable, moveable, two-centimeter by one-centimeter cord. The VA examiner diagnosed the Veteran with scar tissue at the cardiac catheterization entry site and stated that he did not know whether the scar would get smaller over time. No other medical evidence of record addresses complaints or symptoms associated with the Veteran's right groin scar. Based on the foregoing evidence, the Board finds that the Veteran's residual right groin scar does not warrant an increased evaluation under the regulations as in effect prior to October 23, 2008. While the Board acknowledges that the Veteran's scars are not superficial in nature, the objective evidence of record fails to establish that the deep tissue scars in his right groin exceed 12 square inches or 77 square centimeters. Indeed, the July 2005 VA examiner specifically noted that the Veteran's subcutaneous scar was two square centimeters. Thus, while the Veteran's scar is deep and painful, the disability picture demonstrated by the scarring in this case is more closely approximated by the criteria indicated under Diagnostic Code 7804. Accordingly, since the evidence of record does not demonstrate deep tissue scarring that exceeds 12 square inches or 77 square centimeters, the initial evaluation claim in excess of 10 percent for service-connected residual right groin scar must be denied. See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801- 04. Furthermore, the Board notes that the Veteran's residual right groin scar does not warrant a higher evaluation under the new regulations that became effective beginning October 23, 2008. The Veteran's scar area still does not meet the surface area criteria necessary for a higher evaluation under Diagnostic Code 7801, which is essentially unchanged by the new regulations. See 38 C.F.R. § 4.118, Diagnostic Code 7801 (2010). Nor does Diagnostic Code 7802 provide for an evaluation in excess of 10 percent. See 38 C.F.R. § 4.118, Diagnostic Code 7802 (2010). Thus, the new regulations only provide for a higher evaluation under Diagnostic Code 7804, if there are more than two unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2010). As noted above, the objective clinical evidence only notes a single subcutaneous cord two square centimeters in area. While the Board acknowledges that the Veteran's lay testimony states that there are two internal scars, the Veteran's lay testimony does not demonstrate criteria necessary for a higher evaluation, even under the new regulations which require more than two painful scars in order for a disability evaluation in excess of 10 percent. Accordingly, even under the more favorable new regulations, effective October 23, 2008, the Veteran's residual right groin scar does not more closely approximate the criteria necessary for a higher evaluation than that already assigned. See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801-04. It is additionally noted that the single scar does not affect more than one extremity, precluding the possibility of any separate ratings on this basis. The Board acknowledges that the Veteran's last VA examination of his right groin scar was in July 2005, approximately five years ago. However, he has not alleged in any of his statements that the symptomatology of his right groin scar has worsened since that time. In fact, the Veteran's contentions as to why he believes that a higher evaluation is warranted have not significantly differed over the course of the appeal. Thus, the Board does not find that the July 2005 VA examination is an inadequate representation of the current disability picture as it relates to the Veteran's right groin scar. Accordingly, the Board finds that a remand is not necessary in this case in order to determine the current nature and severity of the Veteran's right groin scar, and such a remand would appear to only further delay the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115- 116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected residual right groin scar disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's residual right groin scar. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Finally, the Board has also considered whether a remand is necessary in order to determine whether the Veteran is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The evidence of record does not indicate that the Veteran is currently unemployed due to his residual right groin scar, and in fact, indicates that the Veteran worked full-time during the appeal period, as noted by the Veteran in his July 2005 VA examination. Since there is not any evidence of record that the Veteran's residual right groin scar causes him to be unable to gain and maintain substantially gainful employment, or that the Veteran is unemployed at all, the Board finds that a remand for such an opinion is not required in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 56 (1990). ORDER An initial evaluation in excess of 10 percent for service- connected residual right groin scar is denied. REMAND The Board notes that the Veteran had an x-ray in service in December 2002 that indicated "probable posttraumatic residual from a mild compression fracture of the second lumbar vertebral body." Following that x-ray, the Veteran began having repeated notations of complaints of lower back pain while in service. At his July 2005 VA examination, the Veteran was noted as having chronic back pain with limited range of motion; however, the VA examiner did not note what the actual diagnosis for that pain was, nor did he note the possible compression fracture during service. That notwithstanding, the VA examiner opined that the Veteran's low back pain was related to military service. The Board further notes that the Veteran's private treatment records from November 2004 note that the Veteran had "low back pain(,) likely sacroiliitis." The VA examiner did not note the private treatment note in his examination report. The Board notes that pain, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection can be granted. See Sanchez-Benitz v. West, 13 Vet. App. 282, 285 (1999), dismissed in part, vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001). However, since the Veteran appears to have had a compression fracture in service and a likely diagnosis of sacroiliitis, the Board finds that a new VA examination is necessary in this case in order to determine if the Veteran has a current low back disorder that is related to military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran if he has sought any treatment, either with VA or a private physician, for his low back condition since 2005, which has not yet been associated with claims file. After securing the proper release forms, VA should attempt to obtain and associate with the claims file any identified records. If VA is unable to obtain any of the identified records, such should be so noted in the record and the Veteran should be so informed so that he may have the opportunity to obtain those records on his own behalf. 2. Schedule the Veteran for a VA orthopedic examination in order to determine the current nature of the Veteran's claimed low back disorder and obtain an opinion as to whether that condition is related to service. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, including x- rays, and the results reported in detail. Following a review of the claims file and an examination of the Veteran, the VA examiner should provide a diagnosis of any lumbar spine disorder, to include any arthritic condition thereof, found. The examiner must then opine as to whether that diagnosed condition is more likely, less likely, or at least as likely as not (50 percent or greater probability) due to military service. The examiner is asked to discuss specifically the probable compression fracture of the lumbar vertebral body noted in service and the Veteran's subsequent history of low back pain both during and post-service. The examiner should also specifically discuss the private treatment record which notes that the Veteran likely has sacroiliitis. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Following the above development, the RO/AMC should review the claims file and readjudicate the Veteran's claims of service connection for a low back condition. If the benefit sought on appeal remains denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs