Citation Nr: 1115134 Decision Date: 04/18/11 Archive Date: 05/04/11 DOCKET NO. 97-41 981 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of left maxilla/zygoma fracture. 2. Entitlement to an initial compensable disability rating for service connected left eyebrow scar. 3. Entitlement to an initial compensable disability rating for service-connected left hand scar between 13 February 1997 and 5 May 2009. 4. Entitlement to a disability rating in excess of 10 percent for service-connected left hand scar. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran perfected claims of increased disability ratings for the issues on appeal. In an April 2008 decision, the Board remanded the Veteran's claims for determining whether records from Social Security Administration (SSA) pertained to the Veteran's claims and for a medical examination. A September 2009 Board decision remanded the Veteran's claims for further procedural notice and a medical examination. FINDINGS OF FACT 1. The Veteran's service-connected residuals of a left maxilla/zygoma fracture were manifested throughout the pendency of the claim by symptoms of zygomatic area aching and tenderness, and occasional popping of the maxilla. 2. The medical evidence shows the Veteran had a 2-by-0.5 centimeter painful and unstable scar located above his left ear as a residual of his service-connected left maxilla/zygoma fracture. 3. The Veteran's service-connected left eyebrow scars were manifested by painful and unstable scars from 11 July 2007. 4. The Veteran's service-connected left hand scar was manifested by a 4 centimeter scar without pain or unstable skin before 6 May 2009. 5. The Veteran's service-connected left hand scar is manifested by a 4 centimeter scar with pain but without unstable skin on and after 6 May 2009. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for service-connected residuals of a left maxilla/zygoma fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9916 (2010). 2. The criteria for a 10 percent disability rating for a painful scar above the left ear have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.25, 4.118, Diagnostic Code 7804 (1997 - 2010); Esteban v. Brown, 6 Vet. App. 259 (1994). 3. The criteria for an initial compensable disability rating for service-connected left eyebrow scar have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (1997 - 2010). 4. The criteria for disability rating in excess of 10 percent for service-connected left hand scar have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (1997 - 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran essentially contends that the disability ratings for his claims are lower than their symptoms require. He seeks higher disability ratings for all three service-connected disabilities. The Board will first address preliminary matters and then render a decision on the issues on appeal. Stegall concerns In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary and that the Board errs as a matter of law when it fails to ensure compliance with remand orders. Although VBA is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). As noted above, the Board remanded the Veteran's claims for further procedural and evidentiary development. Specifically, the April 2008 remand ordered VBA to contact SSA and obtain any SSA records pertaining to the Veteran's VA claims, and also to provide the Veteran with a medical examination of the service-connected left hand scar. The Board's September 2009 remand directed VBA to provide notice in accordance with the Court of Appeals for Veterans Claims (Court) holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) and to provide the Veteran with medical examinations regarding the extent and severity of the Veteran's service-connected disabilities. The record shows that VA received a May 2008 notice from SSA that a thorough search had been completed for records pertaining to the Veteran, that none had been found and that further searches would be futile. The record also includes a May 2009 VA examination report. The Board observes that the Court's holding in Vazquez-Flores was overturned by the United States Court of Appeals for the Federal Circuit, thus negating the Board's remand order in that regard. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The record also contains an October 2009 medical examination reporting the nature of all of the Veteran's claimed service-connected disabilities. As is more thoroughly discussed below, the examination reports are sufficient for rating the Veteran's claimed disabilities. For the reasons stated above, the Board finds that VBA has substantially complied with the Board's remand orders. Duties To Notify And To Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1). The claims at issue arise from the Veteran's disagreement with initial disability evaluations following the grant of service connection. The United States Court of Appeals for the Federal Circuit and the Court 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); Goodwin v. Peake, 22 Vet.App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board observes that the Veteran has not contended, nor does the record indicate, that his claim has been prejudiced by a lack of notice. See Goodwin supra at 137 [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]. The Board further observes that the Veteran has been informed in a letter dated May 2008 that the evidence needed to substantiate an increased disability claim must show that his disabilities have gotten worse. He was further informed that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records and would provide him with medical examinations if they were determined to be necessary to properly adjudicate his claims. Finally, the May 2008 notice explained how VA determines a disability rating and an effective date in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record shows that VBA attempted to obtain records from the SSA that pertained to the claims under consideration but was informed by SSA that no such records existed and that further search for such records would be futile. In addition, the record includes service treatment records, VA treatment records and VA medical examination records. The Veteran has been represented by a service representative and has been informed by the RO of the law and regulations that apply to his claims. The Board notes that the Veteran has chosen in writing in his formal appeals not to present evidence at a hearing before a Veterans Law Judge. For those reasons, the Board finds that VBA satisfied the duties to assist and notify the Veteran, and that all due process has been provided. The Board will proceed to a decision on the claims on appeal. Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of left maxilla/zygoma fracture. The Veteran seeks a disability rating in excess of the 10 percent disability rating he has been assigned since the disability was service-connected effective 13 February 1997. Disability evaluations for service-connected disabilities are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). 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 disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2010). This claim is an appeal from the initial disability rating. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's service-connected residuals of left maxilla/zygoma fracture disability is rated under 38 C.F.R. § 4.150, Diagnostic Code 9916 [Maxilla, malunion or non-union of]. The RO has noted the most appropriate diagnostic code as "5299-9916." Regulations found at 38 C.F.R. § 4.20 (2010) provide for an unlisted condition to be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous. See also 38 C.F.R. § 4.27 (2010) (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). Medical evidence shows that the Veteran was diagnosed by the October 2009 VA examiner as having "residuals of zygomatic arch injury: pain and crepitus." Diagnostic Code 9916 is deemed by the Board to be the most appropriate primarily because it pertains most closely to the primary diagnosed disability in the Veteran's case as well as the symptoms the Veteran reports. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate. The Board notes that the Veteran has been denied service-connection for headaches he contended were secondary to the residuals of his zygomatic arch injury and finds that pain associated with the injury under consideration is not appropriate for consideration under the criteria for migraine disabilities because the evidence does not show the pain caused by the zygomatic arch injury residuals are like headaches. Rather, the evidence shows that the pain is more like pain associated with a bony disorder in that the zygomatic area is tender and aches and the Veteran has reported that his maxilla pops and occasionally locks. In addition, the Board notes that the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9916. Diagnostic Code 9916 provides for a 10 percent disability rating for moderate displacement and a 30 percent disability rating for severe displacement. The Board notes that neither "moderate" nor "severe" is defined in VA regulations, but observes in passing that "moderate" is defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition (1988) 871. The word "severe" is generally defined as "of a great degree: serious." See Webster's Ninth New Collegiate Dictionary (1990) at page 1078. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2010) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2010). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2010). The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). The medical evidence in this case includes February 1998 x-rays that were interpreted to show "normal appearing facial bones" and no bone deformity. The February 1998 VA examiner reported that the Veteran complained of "tenderness and pain on his left side of his head" since the injury, but physical examination did not render objective evidence of tenderness. The evidence also includes the October 2009 x-ray examiner reported "no fracture is identified," and "the zygomatic arches appear to be within normal limits" and no bony erosion or destruction was noted. The October 2009 examiner reported the Veteran complained that the "zygomatic area still aches and the maxilla pops and occasionally locks up." The Veteran also told the October 2009 examiner that he experienced left-sided headaches, left-sided eye muscle spasms and scar tenderness. The Veteran has not been on medications to treat his service-connected residuals. The examiner reported that physical examination of the Veteran showed normal left cheek bone and jaw appearance and range of motion, and "tenderness of the left TMJ [temporomandibular joint] that radiates back toward the left temple on palpation of the TMJ" and "no crepitus." The examiner noted that a review of x-rays from 1981 and October 2009 shows that the bone is fully healed. The residuals of the fracture were reported to be "pain and crepitus." In order to substantiate the highest schedular disability rating offered under Diagnostic Code 9916, the evidence would have to show "severe" displacement symptoms. Here, the medical evidence shows only that the Veteran's bones have fully healed and have been so during the pendency of the claim, and that he has experienced pain and tenderness, and occasional crepitus throughout the pendency of the claim. The Board finds that those symptoms do not rise to a characterization of "severe." They are, rather, more accurately described by the term "moderate." The pain and tenderness are not described to be of a severe nature and the reported crepitus is also not described in the evidence to be of a severe nature. For the reasons stated above, the Board finds that the criteria for an initial disability rating in excess of 10 percent is not warranted and further finds that the Veteran's service-connected residuals of maxilla/zygoma fracture have essentially been stable throughout the pendency of the Veteran's claim. Thus, the Board finds that staged ratings are not appropriate under Fenderson. The Board has also considered whether an additional increased rating would be warranted here based on functional loss due to fatigability, incoordination, and lack of endurance. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court, however, has also held that where a diagnostic code is not predicated on a limited range of motion alone, such as Diagnostic Code 9916, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single entity, are to be rated separately. See 38 C.F.R. § 4.25 (2010); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, the anti-pyramiding provision of 38 C.F.R. § 4.14 (2010) provides that evaluation of the same disability under various diagnoses is to be avoided. In a separate examination report, the October 2009 VA examiner reported that the Veteran had a 2-by-0.5 centimeter painful scar over the left ear. The examiner reported that there was no adherence of the scar to underlying tissue and that the Veteran explained that there is a loss of skin covering the scar that occurs twice a year, and that occasionally the scar was nicked by a barber which results in bleeding or weeping and that the "welt that comes up on the zygomatic scar can itch." The schedular disability rating criteria for scars is found at 38 U.S.C.A. § 4.118. The criteria of the diagnostic codes found under § 4.118 changed effective 23 October 2008. Prior to 23 October 2008, 38 C.F.R. § 4.118, Diagnostic Code 7804 [Scars, superficial, tender and painful on objective demonstration] provided a 10 percent disability rating. Effective 23 October 2008, 38 C.F.R. § 4.118 [scars, unstable or painful] provided a 10 percent disability rating for one or two scars that are unstable or painful; a 20 percent disability rating for three or four scars that are unstable or painful; and, a 30 percent disability rating for five or more scars that are unstable or painful. The new criteria also provide that "an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar." See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1) (2010). As noted, the evidence shows that the Veteran suffered residuals to his fractured zygomatic area including a single scar 2-by-0.5 centimeters located over the left ear. The February 1998 examiner noted the scar and described it as having "no significant tenderness" and no keloid formation. The July 2007 examiner noted the scar over the Veteran's left ear was "painful," and had loss of skin covering over the scar. The October 2009 examiner found the scar was tender and that the skin covering the scar was essentially unstable. The Board therefore finds that the Veteran is entitled to a 10 percent disability rating under both criteria effective from the date of service connection pursuant to Estaban and 38 C.F.R. § 4.25 (2010) for the scar found above his left ear. Entitlement to an initial compensable disability rating for service connected left eyebrow scar. The Veteran contends that he is entitled to a compensable disability rating for his service-connected left eyebrow scar. The Veteran's left eyebrow scar is rated under 38 C.F.R. § 4.118, Diagnostic Code 7800 (1997 - 2010). The record includes the February 1998 VA examiner's report that characterized the Veteran's left eyebrow scar to be a 1 centimeter, "benign scar, superficial, linear, just above the left eyebrow, lateral." The examiner stated that "no tenderness was found on examination," and no keloid formation was observed. A July 2007 VA examiner reported that the Veteran had "two scars over left eyebrow," that the scars were painful, that the Veteran reported loss of skin covering the scars and that there was "no adherence of the scars to underlying tissue." The examiner also reported that there was no evidence of "disfiguring scars of the face," but that both scars over the eyebrow "are notable when first seeing the Veteran." The October 2009 VA examiner also noted 2 scars over the left eyebrow, that neither showed adherence to underlying tissue and that both were painful. As above, the Board will examine whether Diagnostic Code 7800 is the most appropriate diagnostic code for the Veteran's service-connected left eyebrow scar. Preliminarily, as noted above, the criteria for skin disabilities including scars changed effective 23 October 2008. However, both the pre-and-post October 2008 Diagnostic Code 7800 criteria provide disability ratings for disfigurement of the head, face or neck. As noted above, none of the VA examiners have characterized the Veteran's left eyebrow scars as disfiguring. Indeed, two have specifically indicated that disfigurement is not an issue. Thus, the Board finds that Diagnostic Code 7800 is not appropriate. Rather, the Board finds that the medical evidence shows painful scars with unstable skin covering. For that reason, the Board finds that Diagnostic Code 7804, stated above, is most appropriate. Once again, the schedular disability rating criteria for scars is found at 38 U.S.C.A. § 4.118. The criteria of the diagnostic codes found under § 4.118 changed effective 23 October 2008. Prior to 23 October 2008, 38 C.F.R. § 4.118, Diagnostic Code 7804 [Scars, superficial, tender and painful on objective demonstration] provided a 10 percent disability rating. Effective 23 October 2008, 38 C.F.R. § 4.118 [scars, unstable or painful] provided a 10 percent disability rating for one or two scars that are unstable or painful; a 20 percent disability rating for three or four scars that are unstable or painful; and, a 30 percent disability rating for five or more scars that are unstable or painful. The new criteria also provide that "an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar." See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1) (2010). As described above, in the February 1998 examination, the left eye brow scars were not found to be painful nor is there evidence that the scars were unstable. Indeed, the first evidence of painful and unstable scars was reported in the July 2007 VA examination report. Both the July 2007 VA examination report and the October 2009 examination report characterize the Veteran's left eyebrow scars as painful and unstable. For those reasons, the Board finds that the Veteran is entitled to a 10 percent disability rating under Diagnostic Code 7804 for service-connected left eye-brow scars under both pre-and-post 23 October 2008 rating criteria, effective 11 July 2007, the date of the VA examination report. As above, the Board observes that staged ratings may be provided under Fenderson v. West, 12 Vet. App. 119, 126 (1999) when the evidence shows that the symptoms of the disability have met the criteria for a higher or lower disability rating. In this case, however, the Board has found that the medical evidence does not show a compensable disability rating criteria was met for the Veteran's left eye scars until the July 2007 VA examination report. For that reason, staged ratings prior to 11 July 2007 are not warranted. Entitlement to an increased disability rating for service-connected left hand scar, evaluated as noncompensable between 13 February 1997 and 5 May 2009 and 10 percent disabling thereafter. The Veteran's service-connected left hand scar is currently rated as 10 percent disabling effective 5 May 2009 and as noncompensable prior to that date from the date of service-connection. The disability is rated under the criteria of 38 U.S.C.A. § 4.118. As noted twice before, those criteria were changed effective 23 October 2008. The medical evidence includes report of the February 1998 VA examiner who stated that the Veteran's left hand scar was on his "left hand palm, 4 cm [centimeters], that goes up to the base of the fourth finger," is nontender and has no keloid formation. The record also includes the June 2004 report of a VA examiner who described the left hand scar as on his palm "in between the third and fourth digits" and as a "well-healed 5 centimeters vertical scar" with no tenderness, no adherence to underlying tissue, no ulceration or breakdown of skin and no elevation or depression of the scar. The examiner also reported that there was no limitation of motion of the Veteran's hand or fingers caused by the scar. A May 2009 VA examiner reported a four centimeter by two millimeter scar on the left palm, with symptoms of achiness and throbbing with pain that radiates into the left elbow. The examiner noted there was no adherence to underlying tissue and no ulceration or breakdown of the skin. As noted above, Diagnostic Code 7804 provides disability ratings for painful scars. The Board finds that Diagnostic Code is the most appropriate diagnostic code because it addresses the primary symptoms of the Veteran's service-connected left hand scar. The Board observes that the Veteran has not indicated that another diagnostic code would be more appropriate. The criteria of Diagnostic Code 7804, both pre-and-post 23 October 2008 are stated above. A review of the medical evidence shows that the Veteran's first complaints of pain were reported in the May 2009 VA examination report. Prior to that time, the Veteran's scar was not reported to be or observed to be painful. In no report is the Veteran's scar reported to include ulceration or breakdown of skin covering the scar. The Board therefore finds that the criteria for a compensable disability rating were not met between the date of service connection and the date of the May 2009 VA examination. The Board further finds that during that period, the evidence was essentially the same and that there is no evidence that at any point during that period the criteria for a higher disability rating were met; specifically, there is no evidence that the scar was painful prior to May 2009. For that reason, the Board also finds that staged ratings are not appropriate under Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board also notes that the criteria for a disability rating in excess of 10 percent from 6 May 2009 are not met. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the Rating Schedule, the pending appeal as to that issue is not abrogated]. The applicable disability rating criteria provide for a 20 percent disability rating for three or four scars that are unstable or painful; and, a 30 percent disability rating for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2009-10). In this case, the Veteran's service-connected left palm scar consists of only one painful scar. For those reasons, the Board finds that a higher 20 or 30 percent disability rating is not warranted. An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). An exceptional case includes factors such as marked interference with employment or frequent periods of hospitalization that render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Court in Thun v. Peake, 22 Vet. App, 111 (2008), provided 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 does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then 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, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In this case, with respect to the initial inquiry posed by Thun, the Board has not found that any of the Veteran's service-connected disabilities are not adequately contemplated under the ratings schedule and, as demonstrated above, are specifically contemplated by those criteria. Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology, the second and third questions posed by Thun are moot. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). In this case, there is no indication that the Veteran has required frequent hospitalizations for any of the service-connected disabilities and there is no evidence that he is unable to obtain employment or has lost employment because of the residuals of a left maxilla/zygoma fracture or the scars of the left eyebrow and left hand. ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of left maxilla/zygoma fracture is denied. Entitlement to a 10 percent disability rating for a painful scar above the left ear is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a 10 percent disability rating for left eyebrow scars is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a compensable disability rating for service-connected left hand scar before 6 May 2009 is denied. Entitlement to a disability rating in excess of 10 percent for service-connected left hand scar after 6 May 2009 is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs