Citation Nr: 1302198 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 07-01 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a watery eye condition, to include as secondary to service-connected disabilities. 2. Entitlement to a disability rating in excess of 10 percent for laceration scar of right anterior scalp and left anterior scalp. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1963 to June 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a December 2006 rating decision, the RO increased the rating for the appellant's service-connected laceration scar of right anterior scalp and left anterior scalp to 10 percent, effective November 23, 2005. As that grant did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In January 2010 and May 2012, the Board remanded this case to the RO via the Appeals Management Center (AMC), in Washington, DC, for further evidentiary development. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the remands regarding the claim for a disability rating in excess of 10 percent for laceration scar of right anterior scalp and left anterior scalp and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a watery eye condition, to include as secondary to service-connected disabilities, 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. FINDING OF FACT The appellant's laceration scars of right anterior scalp and left anterior scalp are painful, but do not have visible or palpable tissue loss with gross distortion or asymmetry of one feature or paired set of features, and do not exhibit two or more characteristics of disfigurement. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for laceration scar of right anterior scalp and left anterior scalp have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.20, 4.118, Diagnostic Codes 7804-7800, 7805 (as in effect prior to Oct. 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Appropriate notice was provided in a December 2005 letter, prior to the adjudication of the claim. A May 2006 letter provided the appellant with notice in compliance with Dingess v. Nicholson. The claim was subsequently readjudicated, and a statement of the case was issued in December 2006. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. In the May 2012 remand, the Board requested that the agency of original jurisdiction (AOJ) contact the examiner who conducted the appellant's December 2005 QTC scars examination and obtain the original colored versions of the photographs taken at that time. The QTC physician responded that all of the records were sent to QTC which sends them on to the VA. He stated that they did not have any records at the office. In a July 2012 letter, the appellant's representative noted that they had contacted the QTC examiner and were informed that they did not keep records that far back. Thus, the appellant's representative had knowledge of the absence of colored versions of the photographs. The December 2005 QTC report is in the claims file. As the AOJ contacted the QTC examiner and received a negative response, the duty to assist has been satisfied. See Stegall, 11 Vet. App. at 268. The appellant has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in December 2005 and August 2010. The examinations are adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests, including photographs. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The December 2005 and August 2010 VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant's claim for an increased evaluation was received on November 23, 2005. As such, the rating period on appeal is from November 22, 2004. 38 C.F.R. § 3.400(o)(2) (2012). The appellant's laceration scar of the scalp, right anterior scalp and left anterior scalp was initially rated as noncompensable under Diagnostic Code 7805. 38 C.F.R. § 4.118. In the December 2011 rating decision, the AOJ granted an increased rating of 10 percent from November 23, 2005, under Diagnostic Code 7804-7800. The applicable rating criteria for skin disorders, 38 C.F.R. § 4.118, were revised effective October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). However, as noted in the Federal Register, the revised criteria apply to all applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). Because the appellant's claim was received prior to October 23, 2008, the revised criteria are not for application in this case. Diagnostic Code 7800, as in effect prior to October 23, 2008, provided a 10 percent rating for a scar of the head, face, or neck with one characteristic of disfigurement. Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: a scar that is 5 or more inches (13 or more cm.) in length; a scar that is at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches (36 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118 (as in effect prior to Oct. 23, 2008). Also under Diagnostic Code 7800, a 30 percent disability rating was assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. 38 C.F.R. § 4.118 (as in effect prior to Oct. 23, 2008). A 50 percent disability rating was assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. Finally, an 80 percent disability rating was assigned for 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 (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Id. Diagnostic Code 7803 assigned a 10 percent disability rating for unstable, superficial scars. 38 C.F.R. § 4.118 (as in effect prior to Oct. 23, 2008). Diagnostic Code 7804 provided a 10 percent disability rating for superficial scars that are painful on examination. Id. Diagnostic Code 7805 provided that 'other' scars should be rated on limitation of function of the part affected. Id. III. Analysis The appellant asserts that he is entitled to a rating in excess of 10 percent for laceration scar of the right anterior scalp and left anterior scalp. For the reasons that follow, the Board concludes that a higher rating is not warranted. A December 2005 VA examination report indicates the appellant had a depressed scar at the right front scalp measuring about 1 cm by 0.5 cm with tenderness and tissue loss of less than six square inches. There was no disfigurement, ulceration, adherence, instability, keloid formation, hypopigmentation, hyperpigmentation or abnormal texture. There were no burn scars present. The appellant had two additional scars on the right anterior scalp of 4 cm and 2 cm, and two scars on the left anterior scalp of 4 cm and 3 cm. A January 2008 VA treatment record reflects that the appellant reported scalp tenderness. The pain was more significant superior to the temporal artery. He had an abnormal contour to the scalp in the area with pain. The VA physician noted that this area was filled with scar tissue from an assault. There was no overlying erythema or drainage to suggest an infection. The area of the previous scar was tender to palpation. An August 2010 VA examination report indicates that there was no skin breakdown over the scar and the appellant reported no pain. The appellant reported sensitivity to the scar area. He also reported occasional headaches. The appellant had two slightly dented scars on the frontal/parietal area bilaterally. The maximum width was 0.4 cm and the maximum length was 5 cm. On examination, there was no tenderness, adhesion of scar tissue or sign of infection. The scar was not painful, it had no signs of a skin breakdown. The scar was superficial. There was no inflammation, edema, or keloid formation, and no abnormal texture. There was no hypo- or hyper-pigmentation. There was no underlying soft tissue loss. The skin was not indurated or inflexible, nor the contour elevated or depressed. It was not adherent to underlying tissue and there were no other disabling effects. In color photos taken at the examination, faint pink scars are visible through the appellant's hair. Based on the above evidence, the Board finds that a rating in excess of 10 percent for the appellant's service-connected laceration scar is not warranted. The August 2010 VA examination report indicates the appellant's scar was 5 cm long. Thus, he had one of the 8 characteristics of disfigurement, a scar that is 5 or more inches in length. However, he did not have any of the other 8 characteristics of disfigurement. As the appellant's scar is on his scalp, he also did not have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features. Thus, the appellant is not entitled to a higher rating under Diagnostic Code 7800. 38 C.F.R. § 4.118 (as in effect prior to Oct. 23, 2008). The December 2005 and August 2010 VA examination reports do not reflect that the appellant's scar was unstable. Moreover, the maximum rating possible under Diagnostic Code 7803 is 10 percent, thus, a higher rating is not warranted under that diagnostic code. The appellant's scar is rated as 10 percent disabling as it was painful on examination, the maximum rating under Diagnostic Code 7804. Diagnostic Code 7805 provided that "other" scars should be rated on limitation of function of the part affected. The evidence does not reflect that there is any limitation of function of the appellant's head due to the scar. Thus, a higher rating is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118 (as in effect prior to Oct. 23, 2008). The Board has considered whether any alternate Diagnostic Codes might afford a higher rating for the appellant's service-connected laceration scar. The appellant is competent to report symptoms capable of lay observation such as tenderness and pain and the Board finds him credible in this regard. However, other than tenderness and reports of pain, which is already contemplated in the 10 percent rating, the appellant's scar is essentially asymptomatic. The August 2010 VA examination indicates the appellant reported having headaches. He is separately service-connected for headaches. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the laceration scar. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's laceration scar are contemplated by the applicable rating criteria. The competent medical evidence shows that the scar is primarily manifested by tenderness on palpation. The Diagnostic Codes used for rating scars contemplate characteristics of disfigurement and symptoms of tenderness and pain. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In conclusion, there is no support for a rating in excess of 10 percent for the appellant's service-connected laceration scar of the right and left anterior scalp. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54. ORDER Entitlement to a disability rating in excess of 10 percent for laceration scar of right anterior scalp and left anterior scalp is denied. REMAND In the May 2012 remand, the Board requested that the appellant be scheduled for an appropriate VA examination to determine the nature and etiology of any current eye condition, claimed as "watery eye." The Board noted that the examiner should specifically consider and address the fact that the appellant's eyes were evaluated as abnormal at his March 1963 service induction examination due to bilateral pterygium. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated during service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Following a June 2012 VA examination, the examiner found that the appellant had bilateral "pingueculae" in both eyes that was misdiagnosed as "pterygium" on entrance exams. She noted that pterygium are the natural progression of pingueculae when they grow onto the cornea. The patient had bilateral pingueculae (no growth onto the corneas) noted on entrance exams in 1963. The VA examiner stated that this condition had not progressed to pterygium (as his corneas remained clear) since that time and the patient had good best corrected visual acuity. The VA examiner opined that it was not likely that his "watery eye" condition is related to his healed remote scalp lacerations that are service-connected. She opined that it was "as likely as not" that his "watery eyes" were related to his pingueculae condition that was noted on entrance to the military and it had not progressed clinically at this time. As the appellant's induction examination report specifically noted that the appellant had pterygium, he had a preexisting eye condition. The June 2012 VA examiner found that the appellant was misdiagnosed and had bilateral pingueculae at the time of his entrance into service. Unfortunately, the June 2012 opinion is inadequate because it did not specifically address whether the appellant's eye disability clear and unmistakable pre-existed service, and if so, whether the disabilities were clearly and unmistakably not aggravated by active service beyond the normal progression of the disease. Although the June 2012 VA examiner provided an opinion, she did not articulate her conclusions in terms applicable to the clear and unmistakable standard. Additionally, although the VA examiner stated that "it was not likely" that the appellant's "watery eye" condition was related to his healed remote scalp laceration, the VA examiner did not provide a rationale for the opinion. The VA examiner also did not address whether the eye condition was related to his service-connected headaches, as requested in the May 2012 Board remand. Consequently, the June 2012 VA examination is inadequate and a new opinion is necessary to determine the claim. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to the VA examiner who conducted the June 2012 VA examination, if available, to determine the etiology of the appellant's eye disorder. If the VA examiner is not available, an opinion should be obtained from an appropriate VA clinician. The claims should include any pertinent records in the Virtual VA claims file if the examiner does not have access to them. Based on a review of the record, the clinician must answer the following questions: (a) Does the evidence of record clearly and unmistakably show (i.e. it is undebatable) that the appellant had an eye disorder prior to his entry onto active duty. (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the preexisting condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease? (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the appellant's current eye disorder had its onset in service or was caused or aggravated by the appellant's service-connected laceration scar of right anterior scalp and left anterior scalp or by his service-connected headaches, residual of a head injury. In answering the questions, the examiner is specifically asked to address the March 1963 induction examination noting that the appellant had bilateral pterygium and the June 2012 VA examination report. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. If the clinician determines that another VA examination is necessary to provide an opinion, such should be accomplished. 2. Thereafter, readjudicate the issue on appeal of entitlement to service connection for a watery eye condition, to include as secondary to service-connected disabilities. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2011). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs