Citation Nr: 1117004 Decision Date: 05/03/11 Archive Date: 05/10/11 DOCKET NO. 07-24 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable initial rating for service-connected donor scar, left thigh. 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of frostbite, left flank. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Barner, Law Clerk INTRODUCTION The Veteran served on active duty from November 1978 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran failed to appear for his scheduled June 2010 hearing, and his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In the June 2006 rating decision, service connection was granted for residuals of frostbite of the left buttock, and a noncompensable evaluation was assigned. The Veteran did not include this issue in his Notice of Disagreement and the issue was not included in the Statement of the Case. The Veteran raised the issue on his July 2007 VA Form 9. Inasmuch as this issue was not appealed, the Board construes the July 2007 statement as a claim for an increased rating for the residuals of frostbite of the left buttock. This issue is referred to the RO for appropriate action. The issue of entitlement to an initial rating in excess of 20 percent for service-connected residuals of frostbite of the left flank 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 1. The Veteran's donor scar, left thigh is non-tender, non-adherent, without depression, loss of sensation, or disfigurement. It measures 21 by 19 centimeters, and does not cause functional loss. 2. The Veteran has competently and credibly asserted throughout this appeal that his donor scar, left thigh is painful, describing itching, sensitivity, and irritation of the scar. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for donor scar, left thigh, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Code 7802 (2010). 2. The criteria for an initial rating of 10 percent for donor scar, left thigh, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In December 2005, October 2008, and February 2009 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the issues on appeal. Additionally, in the October 2008 and February 2009 letters the Veteran was provided with the general criteria for the assignment of an effective date and initial rating. Id. Furthermore, as a claim for an increased initial rating is a downstream issue from that of service connection, the appellant bears the burden of demonstrating prejudice resulting from defective VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that "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 issues"). The Board notes that, in the present case, initial notice was issued prior to the June 2006 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). That case, however, was overruled by the U.S. Court of Appeals for the Federal Circuit, and is no longer binding on the Board. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The Veteran's service treatment records, as well as private medical records, have been obtained. The Veteran was afforded a VA medical examination in February 2006. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal, and is adequate for assigning an initial rating for donor scar, left thigh. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. Part 4 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (West 2002). When, however, the assignment of initial ratings is under consideration, the level of disability in all periods since the effective date of the grant of service connection must be taken into account. Fenderson v. West, 12 Vet. App. 119 (1998). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Donor Scar, Left Thigh The Veteran's service-connected donor scar, left thigh is currently rated by the RO under Diagnostic Code (DC) 7802. Following the RO's June 2006 decision granting service connection for the donor scar, left thigh, and assigning a 0 percent rating, and while the Veteran's appeal was pending, 38 C.F.R. § 4.118 for rating skin disabilities was amended, effective October 23, 2008. See 73 Fed. Reg. 54708-01, 54710 (September 23, 2008). Under the revised regulations, scars other than of the head, face, or neck, are rated under Diagnostic Codes 7801 to 7805. Under either the former or amended VA Rating Schedule, scars, on other than the head, face, or neck, that are deep or cause limited motion are rated as 10 percent disabling if they cover an area or areas exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7801. Under former DC 7803 (there is no DC 7803 in the amended regulation) superficial scars that are also unstable warrant a 10 percent evaluation. 38 C.F.R. § 4.118. Under both the former and the amended Diagnostic Code 7805 other scars could be rated on limitation of function of the affected area. 38 C.F.R. § 4.118. Notes differentiated between deep and superficial scars, by explaining that deep scars are those with underlying tissue damage. In addition, an unstable scar was specified as one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Notes following Diagnostic Codes 7801-7804. As the evidence will show, Diagnostic Codes 7801, 7803 and 7805 are inapplicable. Under prior DC 7802, a 10 percent rating is assigned for scars, other than head, face, or neck, that are superficial and that do not cause limited motion if of an area or area(s) of 144 square inches (929 square centimeters) or greater. 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 § 4.25 of this part. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7802 (prior to October 23, 2008). Under amended DC 7802, a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes not of the head, face, or neck, that are superficial and nonlinear if of an area or areas of 144 square inches (929 square centimeters) or greater. Note (1) is the same as Note (2) under the prior regulation. Note (2) provides that 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 evaluation under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. See 38 C.F.R. § 4.118, DC 7802 (2010). 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. The evaluation of the same disability under various diagnoses is to be avoided. That is to say that the evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding" is to be avoided. See 38 C.F.R. § 4.14. The critical inquiry in making such a determination is whether any of the symptoms are duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Under prior DC 7804, a scar that was superficial and painful on examination could be assigned a 10 percent rating. 38 C.F.R. § 4.118, DC 7804 (in effect prior to October 23, 2008). Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7804, Note (1) (in effect prior to October 23, 2008). Note (2) is not applicable. See 38 C.F.R. § 4.118, DC 7804, Note (2). Under the amended regulations for rating skin disabilities, a 10 percent evaluation may be assigned under DC 7804 where there are one or two scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804 (2010). Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin. See 38 C.F.R. § 4.118, DC 7804, Note (1). Note (2) to DC 7804 provides that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note (2). Note (3) to DC 7804 provides that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. See 38 C.F.R. § 4.118, DC 7804, Note (3). The Veteran has consistently complained throughout the appellate period about his scar of the left thigh, such that staged ratings are not appropriate. See Fenderson v. West, 12 Vet. App. 119 (1998). Service treatment records show that the Veteran had in-service treatment for frostbite, and was subsequently hospitalized for skin graft surgery in October 1996. Private medical records from Chin Medical Corporation dated February 2005 to October 2005 show the Veteran complained of a muscular, bilateral leg pain; however, they are silent in regards to pain in the donor scar area of the left thigh. At the February 2006 VA examination, the Veteran explained how his frostbite was treated in service by taking a skin graft from the left lateral aspect of his thigh. The Veteran denied any current infection, redness, or swelling to the scarred area of the left lateral thigh. As noted above, in regard to his skin, the Veteran denied bruising; changes in moles, hair or nail texture; extreme dryness; changes in skin color; eczema; hives; lumps; and rashes. Neurologic examination revealed the Veteran's history of numbness and tingling over his left leg, and scars related to frostbite. Examination of the left lateral thigh donor skin graft site revealed scarring 21 by 19 centimeters in size with hypopigmentation. The Veteran complained of increasing itching. No loss of sensation, depression, adherence, tenderness, or disfigurement was noted. No loss of function was related to the scars. He was diagnosed as having a scar of the left lateral thigh, with no loss of function. Subsequently in June 2006, the Veteran asserted that the left thigh scar area was sensitive to heat, and easily irritated, such that he had to keep it covered. In February 2010 his representative contended the Veteran's skin was sensitive to heat and easily irritated, and suggested that the Veteran was eligible for a rating under DC 7804. The Veteran's statements describing his symptoms are considered to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Veteran's reports have been consistent throughout the duration of this appeal, and as such his statements are deemed to be credible, and given probative value. In light of the above, the Veteran's donor scar of the left thigh is nontender and well-healed and is 21 by 19 centimeters (399 square centimeters), such that it does not cover an area of 144 square inches (929 square centimeters). The donor scar, left thigh also does not cause loss of function. The Board finds a preponderance of the evidence of record is against a compensable rating for the donor scar, left thigh, currently rated noncompensable under DC 7802. The donor scar, left thigh was reported to cause itching, to be sensitive, and easily irritated. These manifestations are closely analogous to the requirements for a 10 percent evaluation under either version of Diagnostic Code 7804 for a painful and tender scar. Therefore a 10 percent rating is warranted based on the Veteran's consistent reports of itching, sensitivity and irritation of the scar. 38 C.F.R. § 4.118, DC 7804. Under the circumstances, because the Veteran's complaints regarding his donor scar of the left thigh have been consistent throughout the appellate period, pursuant to Fenderson, staged ratings are not appropriate. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (claim for an increased rating includes consideration of whether a total disability rating by reason of individual unemployability is warranted under the provisions of 38 C.F.R. § 4.16). In this case, the Veteran has alleged that his scar is sensitive and easily irritated. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue. The Board acknowledges that the Veteran has stated that he covered his scar to prevent its irritation; however, frequent interferences with his work are not indicated. Further, the Board acknowledges that he was hospitalized for the initial donor graft surgery in 1996; however, the Veteran has not since been hospitalized for any recurring problems with his scar of the left thigh donor graft site. In short, the rating criteria contemplate not only his symptoms, but the severity of his disability. The Board does not find that the schedular criteria have been inadequate for rating the manifestations of the service-connected disability. See 38 U.S.C.A. § 1155 (Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity). For these reasons, referral for extraschedular consideration is not warranted. The preponderance of the evidence is against the Veteran's claim for a compensable initial rating under DC 7802, but in support of an initial rating of 10 percent under DC 7804. In reaching this conclusion, the benefit-of-the-doubt doctrine has been appropriately applied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER A compensable initial rating for donor scar, left thigh is denied. A 10 percent rating for pain of the donor scar, left thigh is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Residuals of Frostbite, Left Flank The Veteran's service-connected residuals of frostbite or cold injury, left flank are rated under the criteria for 38 C.F.R. § 4.104, DC 7122, and are currently evaluated at 20 percent. In February 2006, at his VA examination, the Veteran complained of constant and chronic itching with paresthesias, as well as pain across his low back, and explained his history of numbness, pain and blistering, diagnosed as frostbite while in service. At that time, he denied current infection, redness, swelling of the scarred area, extreme dryness of the skin, eczema, hives, lumps or rashes. Importantly, the Veteran also denied changes in skin color, and the examiner was silent as to this point as it regarded residuals of cold injury, left flank. Otherwise, the examiner noted mild depression, adherence, and a 23-centimeter long paraspinal muscle scar, group XX, that was nondisfiguring, non-tender, well-nourished, and healed. Yet, tenderness secondary to insertion of skin grafting in the lower back area, which was explained to have occurred while in service, was noted. There was pain over the paraspinal scarred area with rotation to 30 degrees. The highest evaluation, 30 percent, under DC 7122 could be granted if there were, in addition to pain, numbness or cold sensitivity, two or more of the following: tissue loss; nail abnormalities; color changes; locally impaired sensation; hyperhidrosis (excess perspiration); or X-ray evidence of abnormalities. It is therefore, significant that the Veteran claimed in June 2006 and July 2007 those complaints previously noted on examination, as well as, cold and heat (or sun) sensitivity, sensitivity to touch, easy irritation, and color changes. This suggests the Veteran's symptoms may be worsening, and a more current examination is necessary to evaluate the current severity of the Veteran's residuals of frostbite, left flank. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his residuals of frostbite, left flank. Please provide the claims folder to the examiner. The examiner should review the pertinent documents in the claims folder, and state in the examination report that the pertinent records were reviewed. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The examiner should elicit from the Veteran a complete history of the symptomatology caused by his residuals of frostbite, left flank. 2. Following any additional indicated development, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. 2010). _________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs