Citation Nr: 1229080 Decision Date: 08/23/12 Archive Date: 08/30/12 DOCKET NO. 08-21 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for a sebaceous cyst of the right ear. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1952 to January 1956. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which continued a 10 percent disability evaluation for sebaceous cyst of the right ear. In September 2011, the Board remanded the case for additional development. This development has now been completed and the claim is ready for review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's sebaceous cyst of the right ear was manifested by a 1/2 cm scar with no induration, was superficial, had no loss of underlying tissue, no elevation or depression, normal pigmentation, and normal texture. 2. The competent and probative medical evidence of record does not show that the Veteran's service-connected sebaceous cyst of the right ear is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for sebaceous cyst of the right ear have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.114, 4.118, Diagnostic Code (DC) 7819, 7800-7805 (2007). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the RO sent correspondence in April 2007 that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letter informed the Veteran of how effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and providing the Veteran with VA examinations in April 2007 and October 2011. The Veteran has not indicated that he has received additional treatment for his service-connected sebaceous cyst of the right ear. The Board thus concludes that there are no additional treatment records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating The Veteran and his representative contend, in substance, that the Veteran's sebaceous cyst of the right ear is more disabling than currently evaluated. The Board will address whether a higher rating or ratings should have been granted for any time period during the appeal. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for increased rating, and continues to the present time. For historical purposes, it is noted that service connection for sebaceous cyst of the right ear was established by the RO in January 1958. The Veteran filed a claim for an increased rating for his sebaceous cyst of the right ear in March 2007, and that during the pendency of his appeal, the schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008); see also 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2009). However, because the amended regulations apply only to claims received by VA on or after October 23, 2008, that version of the scar regulations will not be applied here. See Id. The Veteran's service-connected sebaceous cyst of the right ear is evaluated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7819, which provides ratings for benign skin neoplasms. Benign skin neoplasms are to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or impairment of function, depending upon the predominant disability. Under DC 7800, disfigurement of the head, face, or neck is assigned a 10 percent evaluation with one characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800 (2007). A 30 percent evaluation is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. Id. A 50 percent evaluation is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. An 80 percent evaluation is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes, ears, cheeks, lips), or; with six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement are: a scar, 5 or more inches in length; a scar, at least one-quarter inch wide at widest part; surface contour of a scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; hypo-or hyper-pigmented skin in an area exceeding 6 square inches; abnormal skin texture in an area exceeding 6 square inches; underlying soft tissue missing in an area exceeding 6 square inches; and indurated and inflexible skin in an area exceeding 6 square inches. Id. at Note (1). Tissue loss of the auricle and anatomical loss of the eye are rated under DCs 6207, 6061, or 6063 as appropriate. Id. at Note (2). Unretouched color photographs should be considered when evaluating under these criteria. Id. at Note (3). Under DC 7801, scars, other than on the head, face, or neck, that are deep or that cause limited motion are assigned a 10 percent evaluation for an area or areas exceeding 6 square inches; a 20 percent evaluation for an area or areas exceeding 12 square inches; a 30 percent evaluation for an area or areas exceeding 72 square inches; and a 40 percent evaluation for an area or areas exceeding 144 square inches. 38 C.F.R. § 4.118, DC 7801 (2007). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, are separately rated and combined in accordance with 38 C.F.R. § 4.25. Id. at Note (1). A deep scar is one associated with underlying soft tissue damage. Id. at Note (2). Under DC 7802, scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion are assigned a 10 percent evaluation for an area or areas of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2007). Scars that are in widely separated areas are separately rated and combined in accordance with § 4.25. Id. at Note (1). A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (2). Under DC 7803, superficial and unstable scars are assigned a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7803 (2007). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (2). Under DC 7804, scars that are superficial and painful on examination are assigned 10 percent evaluation. 38 C.F.R. § 4.118, DC 7804 (2007). A superficial scar as one not associated with underlying soft tissue damage. Id. at Note (1). A 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even if amputation of the part would not warrant a compensable evaluation. Id. at Note (2). Other scars are rated on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805 (2007). Under DC 7805, scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The Board has reviewed all of the evidence in the Veteran's claims file, including his VA and private treatment records, VA examination reports, and statements submitted in support of his claim. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claim for an increased rating in excess of 10 percent for sebaceous cyst of the right ear. In determining whether the Veteran is entitled to a disability rating in excess of 10 percent throughout the appeals period, the Board has reviewed VA outpatient treatment records, and the April 2007 and October 2011 VA examination reports. Based on this evidence, the Board finds that the Veteran is not entitled to an increased disability rating in excess of 10 percent throughout the entire period of appeal. The Veteran's VA outpatient treatment records noted that he had a benign sebaceous cyst of the right ear. The Veteran was afforded a VA skin examination in April 2007. The Veteran was noted to have a sebaceous cyst, which was previously surgically removed on two occasions. The Veteran reported that a third surgery was too risky due to location of the cyst. The examiner concluded that the Veteran's skin condition was a tiny flesh-colored, oval-shaped lesion on the right ear. The Veteran was afforded another VA skin examination in October 2011. The examiner noted that the Veteran had a sebaceous cyst excision. The Veteran was noted to not have any further skin conditions. The Veteran had the cyst removed in 1958 and 1964, and was told the cyst could not be excised anymore. The examiner noted that the Veteran's cyst resulted in no disfigurement and a very small scar that measured 1/2 cm, with no induration, was superficial, had no loss of underlying tissue, no elevation or depression, normal pigmentation, and normal texture. Additionally, there was no limitation due to the scar. The Veteran was not treated with oral or topical medications, nor had any treatments or procedures in the past 12 months for his sebaceous cyst. Furthermore, the Veteran's skin condition did not impact his ability to work. Based on the above evidence, the Board finds that the Veteran is not entitled to an increased disability rating in excess of 10 percent for sebaceous cyst of the right ear. At no time during the pendency of this appeal has the Veteran's skin disability been shown to cause visible or palpable tissue loss and either gross distortion or asymmetry of one or more features or paired set of features in the head, face or neck, and his disability does not result in at least two or three characteristics of disfigurement of the head, face, or neck to warrant a higher rating of 30 percent under DC 7800. See 38 C.F.R. § 4.118, DC 7800 (2007). Specifically, the October 2011 VA examiner stated that the Veteran's cyst resulted in no disfigurement and a very small scar that measured 1/2 cm, with no induration, was superficial, had no loss of underlying tissue, no elevation or depression, normal pigmentation, and normal texture. Likewise, the Board has considered whether there are any additional Diagnostic Codes pertaining to scars that may permit a higher disability evaluation. Diagnostic Codes 7801 and 7802 provide ratings for scars, other than the head, face, or neck. As previously stated, the Veteran's sebaceous cyst is on his right ear. Therefore, these diagnostic codes do not apply to the Veteran's condition. Additionally, a 10 percent evaluation is the maximum assignable for scars under Diagnostic Codes 7803 and 7804. Thus, higher evaluations are not available under these codes. See 38 C.F.R. § 4.118, DCs 7803, 7804 (2007). Finally, Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. Id. However, the October 2011 VA examiner stated that the there was no limitation due to the Veteran's scar. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an increased disability rating in excess of 10 percent for sebaceous cyst of the right ear must be denied. III. Extraschedular Consideration The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's sebaceous cyst of the right ear are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. For this reason, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an increased disability rating in excess of 10 percent for sebaceous cyst of the right ear is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs