Citation Nr: 1301053 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 06-06 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right femoral neuropathy prior to October 4, 2010. 2. Entitlement to a rating in excess of 30 percent for right femoral neuropathy since October 4, 2010. 3. Entitlement to a compensable rating for residual scarring of the right thigh prior to February 15, 2007. 4. Entitlement to a rating in excess of 10 percent for residual scarring of the right thigh since February 15, 2007. 5. Entitlement to a rating in excess of 30 percent for schizoaffective disorder prior to October 21, 2010. 6. Entitlement to a rating in excess of 70 percent for schizoaffective disorder since October 21, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, in February 2006, July 2007, and October 2011. Following an April 2010 Travel Board hearing, the Board remanded the claims involving right femoral neuropathy and a right thigh scar for additional development in August 2010. The Board also remanded a claim for service connection for an acquired psychiatric disorder in August 2010. In October 2011, the Appeals Management Center (AMC) in Washington, D.C. granted service connection for schizoaffective disorder, with a 30 percent evaluation assigned as of September 2, 2003 and a 70 percent evaluation assigned as of October 21, 2010. The Veteran submitted a Notice of Disagreement with this determination in November 2011. This issue, now involving the assigned ratings, is REMANDED to the RO via the AMC and is addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. During the period from February 15, 2007 until October 4, 2010, right femoral neuropathy was shown to be productive of symptomatology commensurate to moderate incomplete paralysis, with very frequent subjective complaints of, and treatment for, sharp and stabbing pain in the right lower extremity. 2. During the period beginning on October 4, 2010, right femoral neuropathy was shown to be productive of symptomatology commensurate to severe incomplete, but not complete, paralysis. 3. For the entire appellate period, residual scarring of the right thigh has been objectively painful. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent evaluation for right femoral neuropathy have been met for the period prior to October 4, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8526 (2012). 2. The criteria for an evaluation in excess of 30 percent for right femoral neuropathy have not been met for the period since October 4, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, DC 8526 (2012). 3. The criteria for an initial 10 percent evaluation for residual scarring of the right thigh have been met for the period prior to February 15, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.31 (2012); 38 C.F.R. § 4.118, DCs 7803-7805 (2008). 4. The criteria for an evaluation in excess of 10 percent for residual scarring of the right thigh have not been met for the period since February 15, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.31 (2012); 38 C.F.R. § 4.118, DCs 7803-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Right Femoral Neuropathy The Veteran's right femoral neuropathy has been evaluated under DC 8526 as paralysis of the anterior crural nerve (femoral). In cases of incomplete paralysis, ratings are assigned for mild (10 percent) , moderate (20 percent), and severe (30 percent) disability. A maximum 40 percent evaluation is assigned for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a separately indicates that, when the neurological involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. Initially, the RO granted service connection for right femoral neuropathy in a July 2007 rating decision, in light of evidence of an in-service stab wound to this region, and assigned a 10 percent evaluation as of February 15, 2007. The RO based its initial evaluation on the findings from an April 2007 VA neurological examination, which revealed 4/5 quadriceps power secondary to pain, otherwise 5/5. Deep tendon reflex testing was 0 in terms of right ankle jerk and +1 ankle jerk bilaterally. The Veteran had an antalgic gait and walked with a right lower extremity limp. There was positive neuralgica, and passive/active range of motion was normal. The diagnosis was right femoral neuropathy, secondary to a stab wound in service, with no further assessment made as to the degree of the disability. Given that the VA examination findings from April 2007 were not accompanied by an analysis of the severity of the Veteran's disability, the Board has reviewed contemporaneous VA outpatient treatment records to ascertain the degree of disability at that time. Notably, he was seen on a frequent basis for right hip pain beginning in August 2006. At that time, he had positive straight leg raising, but the examiner noted that it "does not appear to be sciatica." The pain was reported to be progressively worsening and "jabbing pain," without sciatica. An October 2006 record indicates that the Veteran described pain as being located in the lateral aspect of the proximal lower extremity, with some radiation down the lateral aspect of the leg to the foot, that was 6/10 in severity and sharp in quality, although an EMG did not show neuropathy. Numerous subsequent records indicate ongoing pain at the 6/10 level. Records from November and December of 2006 contain a notation of a "sharp, stabbing" quality to the pain. He continued to report pain of 6/10 severity on multiple occasions between January 2007 and March 2008, with the pain described as constant and "sharp" in quality. The Veteran underwent another VA peripheral nerves examination in November 2009. This examination was relatively cursory in nature, indicating a finding of 4+/5 in the right quadriceps, positive allodynia and hyperalgesia over the right lateral thigh scar, decreased hop on the right, continued use of a cane to relieve the right thigh pain, and full range of motion of the lower extremities. A diagnosis of service-related right post-traumatic femoral neuropathy was rendered, and once again the examiner did not provide a description of the degree of severity of the disability. Overall, there was a relative absence of objective clarifying information as to the degree of disability of the right lower extremity prior to October 2010. The Board is, however, well aware of the Veteran's descriptions of sharp and stabbing pain that was repeatedly of 6/10 in degree during this same period. As noted above, 38 C.F.R. § 4.124a allows for a rating of the moderate degree in cases of sensory neurological involvement. Here, the Board finds that the Veteran's consistent and credibly reported subjective symptoms from this period reflect moderate symptomatology and are commensurate to moderate incomplete paralysis. He is competent to report his own sensation and observations regarding such pain. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). For this reason, the Board finds that an initial 20 percent evaluation should be assigned for the Veteran's disability for the period prior to October 4, 2010. This represents a partial grant, although the Board must stress that an even higher disability evaluation (i.e., 30 percent) is not warranted in the absence of objective symptomatology indicating severe symptomatology. In this regard, the Board notes that the 30 percent evaluation assigned as of October 4, 2010, was based upon findings from an October 2010 VA neurological examination and a January 2012 addendum confirming severe right femoral neuropathy. For the period beginning on October 4, 2010, a higher evaluation of 40 percent would only be warranted for complete paralysis of the quadriceps extensor muscles. The October 2010 examination findings, however, are far from commensurate to such a level of disability. The examination revealed positive allodynia, hypoesthesiae, hyperalgesia, power of 4+/5 of the right quadriceps, and "2 bilaterally" deep tendon reflexes involving the supinator, biceps, triceps, knee jerks, and ankle jerks. The Veteran walked with a cane with a right lower extremity limp, with "heel/toe OK bilaterally" and an inability to hop on the right leg. Given the degree of available movement and function in this case, these findings are far more commensurate with a severe disability (incomplete paralysis) and a 30 percent evaluation than with complete paralysis and a 40 percent evaluation. In reaching the above determinations, the Board has considered the Veteran's lay contentions, including his April 2010 hearing testimony. Such lay evidence can, in certain circumstances, constitute competent evidence in support of a claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board has, in fact, considered the Veteran's subjective complaints in increasing the rating from 10 percent to 20 percent for the period from February 15, 2007 until October 4, 2010. Under 38 C.F.R. § 4.124a, however, more than sensory findings are required for a determination that a neurological disability is more than moderate in degree. Any determination as to that degree of disability accordingly requires medical training and credentials, which the Veteran does not possess. See 38 C.F.R. § 3.159(a)(2). His lay opinion accordingly is not competent for the purpose of determining whether his disability is or has been more than moderate in degree and lacks probative value. Overall, the Board finds that the evidence supports a 20 percent rating for right femoral neuropathy for the period prior to October 4, 2010, and a 30 percent rating since. This represents a partial grant for the period prior to October 4, 2010 and a denial for the period thereafter. Right Thigh Scar In considering the rating criteria applicable in this case, the Board notes that as of October 23, 2008, revised provisions for evaluating scars were enacted. This new regulation, however, indicates that the revised provisions are applicable only to claims received on or after October 23, 2008, unless a veteran specifically requests consideration under the new regulations. In the absence of such a request in this case, these revisions do not apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Rather, the Veteran's claim will be considered solely under the criteria effective as of the date of receipt of the claim (here September 2003). In this regard, 38 C.F.R. § 4.118 (2008) listed several criteria for evaluating scars. Under DC 7803, a maximum evaluation of 10 percent was assigned in cases of superficial and unstable scars. A superficial scar is one not associated with underlying soft tissue damage, whereas an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Under DC 7804, a maximum evaluation of 10 percent was warranted in cases of superficial scars that are painful on examination. See 38 C.F.R. § 4.31. Also, under DC 7805, other scars may be evaluated on the basis of limitation of function of the affected part. Preliminarily, the Board notes that the RO granted service connection for the Veteran's scar in a February 2006 rating decision, with a zero percent evaluation assigned as of September 2, 2003. As noted above, the currently-assigned 10 percent evaluation was assigned only as of February 15, 2007, in light of a new claim received as of that date (as noted in a July 2007 rating decision). In fact, the Board notes that, in February 2007 (within one year of notification), the RO received the Veteran's Notice of Disagreement (NOD) with the February 2006 rating decision and "the issue of right hip currently rated at 0%." The RO found the NOD was not adequate because the Veteran was not service-connected for a hip condition. However, the February 2006 rating decision clearly identified a "scar, residuals of laceration of the right thigh, claimed as right hip," so there should have been no question what the Veteran was referring to in the NOD. In sum, the NOD should have been found to be adequate, and the Board deems it as such. The Board thus finds that this matter has been continuously pending since the receipt of the September 2003 claim and should be considered an "initial rating" claim per Fenderson. By this determination, the Board can consider the propriety of the initially assigned zero percent evaluation, prior to February 15, 2007. In this regard, the earliest medical evidence of record addressing the scar, a March 2004 scars VA examination report, contains a notation that the Veteran reported that the scar "is painful all the time," and there was slight pain of the scar with pressure upon examination. The Board thus finds that the currently-assigned 10 percent evaluation should be effectuated for the entire pendency of the appeal, in light of these findings and the criteria of DC 7804. To this extent only, the appeal is granted. The question thus becomes whether an even higher evaluation is warranted for the Veteran's scar. No higher evaluation is available under DCs 7803 and 7804. The Board also notes that the provisions of DC 7802 extant at the outset of this appeal, concerning deep scars (i.e., associated with underlying soft tissue damage) are inapplicable here because the Veteran's scar has been noted to be superficial and less than two centimeters in area. As to DC 7805, the Board has reviewed the medical evidence of record, including VA outpatient treatment records and examination reports dated from March 2004 through October 2010, but these reports do not indicate that the scar itself has resulted in any limitation of function other than a limp. Limitation of routine daily activities and employment was specifically denied in an October 2010 scars VA examination. The Board accordingly finds no basis for a higher evaluation. The Board has considered the Veteran's lay opinion in reaching this determination, but this opinion must be weighed against the opinions of the VA examiners, who had access to the claims file, conducted thorough evaluations, and - unlike the Veteran - have the requisite training and credentials to ascertain whether any limitations of the right lower extremity are attributable to the service-connected scar, as opposed to the separately service-connected right femoral neuropathy. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board thus finds that the Veteran's lay observations do not provide a sufficient basis to grant an evaluation in excess of 10 percent. Overall, the Board finds that a 10 percent initial evaluation is warranted for the service-connected right thigh scar for the entire appellate period beginning on September 2, 2003. This determination represents a partial grant for the period priot to February 15, 2007, and a denial for the period thereafter. Further Rating Matters Next, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Veteran has submitted no evidence showing that the two disorders described above have markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that these disorders have necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Rather, and for the reasons described above, the evidence showed that the ratings assigned under the specified diagnostic criteria have fully contemplated the Veteran's symptoms, specifically the effect of the disabilities on his occupational functioning. With both disabilities, the Board has applied the relevant diagnostic criteria to increase the initially assigned ratings for the disorders, while finding that the currently assigned ratings are appropriate to the levels of disability now shown. As such, a remand for consideration of an extra-schedular evaluations is not warranted. Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). Here, the Veteran's October 2010 VA mental disorders examination indicates that he previously worked for VA but retired in 2003 and "currently supports himself with his pension." He has not asserted, nor does the record otherwise suggest, that the disabilities addressed in this decision currently preclude him from securing or following a substantially gainful occupation. As such, a remand in this case for TDIU consideration under Rice is not warranted. Duties to Notify and Assist Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in September 2003 (prior to adjudication of right hip) and March 2007 (after grant of service connection for residual scarring). The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claims for an increased ratings as this is the premise of the claims. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2007. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran has been afforded multiple VA examinations, and relevant VA, Social Security Administration, private, and service treatment records have been obtained. The AMC obtained additional VA treatment records and afforded the Veteran fully adequate VA examinations subsequent to the August 2010 remand. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In this regard, despite the assertions in the Veteran's August 2012 brief, the Board finds that the neurological examiner adequately addressed his subjective reports of loss of motion and paralysis of the quadriceps muscle. The October 2010 examination report in fact contains significant findings as to power testing of the right quadriceps, deep tendon reflexes, and the need for a cane (in the context of a right lower extremity limp and an inability to hop on the right leg). The Board finds that these examination results meet the specifications of the August 2010 remand, and in fact were cited by the AMC in the April 2012 decision to increase the Veteran's rating to 30 percent as of the date of the examination. A remand for an additional examination is thus not required and would instead result only in further delay in the adjudication of this case. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). ORDER A rating of 20 percent, but no more, for right femoral neuropathy prior to October 4, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 30 percent for right femoral neuropathy since October 4, 2010, is denied. A 10 percent rating, but no more, for residual scarring of the right thigh prior to February 15, 2007, is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for residual scarring of the right thigh since February 15, 2007, is denied. REMAND As noted above, in an October 2011 rating decision, the AMC granted service connection for schizoaffective disorder with a 30 percent evaluation assigned as of September 2, 2003, and a 70 percent evaluation assigned as of October 2010. In November 2011, the Veteran responded with an NOD, noting the currently-assigned 70 percent evaluation and asserting that he met the criteria for a 100 percent evaluation. In the absence of any statement to the contrary, the Board will liberally interpret this NOD to reflect a belief that the 100 percent evaluation sought is in fact sought for the entire appellate period. As the AMC (or the RO) has not furnished the Veteran with a Statement of the Case to date, such action must be accomplished on remand. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 19.26. Accordingly, the case is REMANDED for the following action: The Veteran must be furnished with a Statement of the Case on the issues of entitlement to increased evaluations for schizoaffective disorder, initially evaluated as 30 percent disabling prior to October 21, 2010, and as 70 percent disabling thereafter. He must be notified of his rights and responsibilities in perfecting an appeal on this matter, and the case should only be returned to the Board if he perfects an appeal. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs