Citation Nr: 1124528 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 05-38 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable evaluation for residuals of a shrapnel wound of the left buttock. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1955, including decorated combat service, and his awards include the Purple Heart Medal and the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that in part denied the Veteran's claim for an increased rating for the residuals of shrapnel wound to the left buttock. This case was previously before the Board, which in May and in November 2010 remanded the case for additional development of the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Residuals of a shrapnel wound of the left buttock is not shown to manifest visible scarring or limitation of function of the affected part; and is not productive of a scar that is: unstable, tender, deep or causes limited motion, covers an area of 144 square inches or more, or that is superficial and painful on examination. CONCLUSION OF LAW The criteria for a compensable disability rating for residuals of a shrapnel wound of the left buttock, are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7 (2010); 38 C.F.R. 4.118, Diagnostic Code 7801-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duties to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Though notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the Veteran has been provided all information needed for a reasonable person to prove these claims. In any event, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently vacated the previous decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a number of letters provided between October 2004 and November 2010. These documents in combination provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The RO informed the Veteran of the specific criteria to substantiate his claim for an increased rating. The RO has provided adequate notice of how effective dates are assigned and the claim was readjudicated most recently in an April 2011 supplemental statement of the case. To the extent the Veteran did not receive full notice prior to the initial decision, after pertinent notice was provided he was afforded a meaningful opportunity to participate in the adjudication of the claims on appeal. The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment records, and records of medical treatment received from VA. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was offered the opportunity to testify at a hearing before the Board but declined. VA examined the medical history of the Veteran's service-connected residuals of a shrapnel wound of the left buttock for compensation purposes addressing the rating claim. Findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the Veteran has not reported that the skin disability on appeal has worsened since the most recent VA examination, conducted in February 2011. As such, a remand is not required solely due to the passage of time since the February 2011 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits of the Claim Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2 (2010). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (finding staged ratings appropriate also in cases where the appeal was not as to the initial rating assigned after service connection is established). Thus, in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. The Veteran's statements describing the symptoms of his service-connected residuals of a shrapnel wound of the left buttock are deemed competent evidence. 38 C.F.R. § 3.159(a)(2) (2010). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. The Veteran is competent to report complaints of pain. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation). The Veteran is currently in receipt of a noncompensable disability rating for residuals of a shrapnel wound of the left buttock under Diagnostic Code 7805, reflecting an evaluation for scar residuals of the shrapnel wound. See 38 C.F.R. § 4.118, Diagnostic Code 7805. The schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008, so that it more clearly reflects VA policies concerning the rating of scars. 73 Fed. Reg. 54,708-54,712 (September 23, 2008). Because these modifications were expressly made applicable only to claims filed on or after the effective date, they are not applicable to the instant claim, which was originally received in September 2004. Under 38 C.F.R. § 4.118, Diagnostic Code 7805, other scars (not rated otherwise in the Rating Schedule), are rated on limitation of function of the affected part. The Veteran's service records show treatment for convalescence in service after he had a piece of shrapnel removed from his hip in the outpatient department. A July 1955 report of examination contains notes that the Veteran was treated at an Army hospital for a shell fragment wound of the buttock in May 1952. There are no other service treatment records showing treatment for this. Shortly after service discharge, during a November 1955 VA examination, the Veteran reported a history of being wounded in the left buttock in May 1953. On examination, the examiner found a 3 centimeter oval non-tender scar over the right gluteal region but made no findings or diagnosis referable to residuals of a shrapnel wound of the left buttock. The Veteran underwent VA Compensation and Pension (C&P) examination for scars regarding his residuals of a shrapnel wound of the left buttock in October 2004, July 2010 with a follow-up (addendum) examination by the same examiner in December 2010; and the Veteran underwent a VA C&P general medical examination in February 2011 that included skin examination. During each of these examinations, the Veteran reported no complaints regarding the left buttock or his residuals of a shrapnel wound of the left buttock. During each of these examinations the examiners examined and commented on skin abnormalities found on parts of the Veteran's body. Although examiners at each of these examinations made findings of a number of skin conditions associated with various parts of the Veteran's body, none of these reports contain findings that any scars were found on the left buttocks, or of any residuals of a shrapnel wound involving the left buttock. In the December 2010 addendum report, the examiner specifically stated that there was no scar on the left buttock. Review of the remainder of the clinical record contains no evidence of any scar or of any other residuals of a shrapnel wound of the left buttock. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable law, the Board finds that the Veteran's service-connected residuals of a shrapnel wound of the left buttock is not shown to manifest any objective manifestations warranting a compensable rating under relevant skin disorder diagnostic code criteria. The Veteran has submitted no assertions otherwise. The Board therefore finds that the Veteran's service-connected residuals of a shrapnel wound of the left buttock is appropriately evaluated as noncompensable. As there is no discernable scar or other referable symptomatology of the left buttock shown on multiple examinations, or in the record otherwise, the evidence does not show that the Veteran's service-connected residuals of a shrapnel wound of the left buttock results in any limitation of function of the affected part so as to warrant a compensable disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board has considered other applicable rating criteria for evaluating scars. See 38 C.F.R. § 4.118. The evidence does not show, however, that the residual disability meets criteria to warrant a compensable rating under other relevant diagnostic codes for rating skin (scar) conditions. The disability is not shown to be productive of a scar that is deep or that causes limited motion. It does not include a scar that covers an area of 144 square inches or more. Therefore, a compensable rating for residuals of a shrapnel wound of the left buttock, is not warranted under related codes. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802. The service-connected residuals of a shrapnel wound of the left buttock also does not warrant a compensable disability rating under Diagnostic Code 7803, because the residuals are not productive of a scar that is shown to be unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803. Lastly, the medical evidence does not show that the service-connected residuals of a shrapnel wound of the left buttock involves a superficial, painful scar on examination, so as to warrant a compensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) to that code defines a superficial scar as one not associated with underlying soft tissue damage. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for compensable evaluation are not met. 38 C.F.R. § 4.31 (2010). In summary, the service-connected residuals of a shrapnel wound of the left buttock, does not meet any pertinent criteria so as to warrant a compensable disability rating under any relevant diagnostic codes. See 38 C.F.R. § 4.118. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's residuals of a shrapnel wound of the left buttock, which is productive of no visible scar or limitation of function of the affected part. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. See 38 C.F.R. § 4.31. For all the foregoing reasons, there is no basis for staged rating, pursuant to Hart, supra, and the preponderance of the evidence is against the grant of a compensable disability rating for residuals of a shrapnel wound of the left buttock. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.31. ORDER Entitlement to a compensable disability rating for residuals of a shrapnel wound of the left buttock, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs