Citation Nr: 1032042 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 05-17 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, indentified as schizoid personality disorder. 2. Entitlement to a rating in excess of 10 percent for burn scars of the left foot. 3. Entitlement to a rating in excess of 10 percent for burn scars of the right foot. REPRESENTATION Appellant represented by: Alice Masina, Attorney ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1954 to July 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). In June 2010, a videoconference hearing was held on the record before the undersigned; a transcript of that hearing is of record. The Veteran, while present, did not testify. Instead, his attorney (also his niece), requested an extension of 60 days in order to obtain additional information regarding the claim. While the request was granted, no such evidence was received. 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). FINDINGS OF FACT 1. On the record at the June 2010 videoconference hearing before the undersigned, the Veteran's attorney indicated that he wished to withdraw his appeal seeking service connection for a psychiatric disorder; there are no questions of law or fact remaining before the Board in this matter. 2. Throughout the period of the appeal, a burn scar of the left foot has been manifested by a two-centimeter by three-centimeter area of hyperpigmentation that is minimally tender to palpation. 3. Throughout the period of the appeal, a burn scar of the right foot has been manifested by three-centimeter by three-centimeter scar that is minimally tender to palpation. CONCLUSIONS OF LAW 1. The Substantive Appeal in the matter of entitlement to service connection for a psychiatric disorder has been withdrawn; the Board has no jurisdiction in this matter. 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.202, 20.204 (2009). 2. The criteria for a rating in excess of 10 percent for a burn scar of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2009). 3. The criteria for a rating in excess of 10 percent for a burn scar of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim for Service Connection for an Acquired Psychiatric Disorder Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. On the record at the pre-hearing conference before the undersigned in June 2010, the Veteran's authorized representative withdrew his appeal in the matter of entitlement to service connection for a psychiatric disorder. Hence, there are no allegations of error of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to consider an appeal in that matter, and it must be dismissed without prejudice. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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 (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. Pelegrini v. Principi, 18 Vet. App. 112 (2004). For the increased rating issues decided herein, the provisions of the VCAA have been fulfilled by information provided to the Veteran in correspondence from the RO dated in January 2008 and April 2009. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. The Veteran has had ample opportunity to respond/supplement the record. He is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. He did not identify any pertinent, outstanding treatment records. The RO arranged for a VA examination in March 2008. The Veteran did not testify at his June 2010 videoconference hearing before the Board. At a June 2010 pre- hearing conference on the record, the Veteran's representative stated that she would submit additional evidence within 60 days. She has not done so. Evidentiary development is complete. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. Increased Rating - Law And Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). At the time of an initial rating, 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). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2009). Regulations for the evaluation of skin disabilities were revised for claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2009)). Because the Veteran's claim was pending before October, 28, 2008, it will only be evaluated under the rating criteria made effective prior to that date. See id. 780 1 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear: Ratin g Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1): A deep scar is one associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2009) 780 2 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear: Rating Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2009) 780 4 Scar(s), unstable or painful: Ratin g Five or more scars that are unstable or painful 30 Three or four scars that are unstable or painful 20 One or two scars that are unstable or painful 10 Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2009) 780 5 Scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2009) Factual Background and Analysis Initially, 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 this appeal. 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 analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Historically, the Veteran's service treatment records show that he spilled hot water on his feet and sustained burns. A February 1957 rating decision granted service connection for residual scars secondary to burns of the left and right feet, rated 10 percent disabling. In January 2008, the Veteran submitted a claim for increased rating. A March 2008 VA examination report notes the Veteran's history of hot water burns on his feet and current complaints of minimal pain related to his scars. The scars did not affect his ability to stand and walk. (The examiner noted that the Veteran had suffered a stroke in 1993 which caused problems with weight bearing and walking. The Veteran had also retired from his job based on his years of service.) The Veteran reported that he had not sought any medical treatment for his scars in the past year. Examination of the left foot included findings of a two- centimeter by three-centimeter area of hyperpigmentation on the dorsum of the foot. There was no scar. There was no elevation, depression, oozing, draining, or ulceration. The area was minimally tender to palpation. Examination of the right foot included findings of a three-centimeter by three-centimeter hyperemic, ulcerated scar on the dorsum of the foot that was minimally tender to palpation. There was no elevation, depression, oozing, or draining. There was no subcutaneous tissue loss on either foot. The examiner noted that the Veteran's functional limitations were due to the residuals of his stroke; the burns had no significant effect on his ability to perform the activities of daily living. VA outpatient treatment records include reports from the podiatry and diabetes clinics, dated through June 2009. These reports address diabetic complications and other foot-related pathology unrelated to the service connected scars of the feet. A close review of the record reveals no distinct period during which the criteria for a higher rating were met for either scar disability. Objective examination confirmed that during the period of this appeal, the Veteran has had one stable, superficial scar/hyperpigmented area on each foot that measured no more than nine square centimeters, was mildly tender to palpation, and caused no limitation of motion of the affected part. Based on these findings, a 10 percent evaluation is warranted for each scar under Diagnostic Code 7804. The medical evidence does not reflect the existence of any associated scar of a size or that involves any symptoms or pertinent characteristics so as to warrant the assignment of an evaluation in excess of 10 percent under any other pertinent provision of section 4.118. Specifically, the scars have not been noted to be deep or cause limited motion. See Diagnostic Code 7801. Neither scar consists of an area of 929 sq. cm. or greater. See Diagnostic Code 7802. Additionally, neither scar has not been found to be unstable or causes limitation of motion; thus Diagnostic Codes 7803 and 7805 are not applicable. Finally, the Board has also considered whether referral for extraschedular consideration is suggested by the record. In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In the case at hand, there is no objective evidence that the disability picture presented is exceptional or that schedular criteria are inadequate. In this case, the Board finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his scars that would take the Veteran's case outside the norm so as to warrant the assignment of extraschedular ratings during the appeal period. The Veteran's impairment is contemplated by the schedular ratings assigned. (CONTINUED ON NEXT PAGE) ORDER The appeal in the matter of entitlement to service connection for a psychiatric disorder, indentified as schizoid personality disorder, is dismissed. Entitlement to a rating in excess of 10 percent for burns of the left foot is denied. Entitlement to a rating in excess of 10 percent for burn scars of the right foot is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs