Citation Nr: 1304345 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 07-38 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased (compensable) disability rating (evaluation) for the service-connected residual scar, status post laceration of the right groin. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In November 2010, the Veteran presented testimony relevant to his appeal at a Decision Review Officer (DRO) hearing. A transcript of the hearing is of record. In May 2012, the Veteran submitted a written statement with the subject line of "Notice of Disagreement" regarding the issue of entitlement to compensation for heart disease (coronary artery disease) as due to Agent Orange exposure. Nevertheless, as correctly stated in the June 2012 response by the RO, the Veteran had previously been awarded service connection for coronary artery disease with a 60 percent disability rating effective February 2, 2010. See March 2011 rating decision. The RO then stated that it would take no further action on the Veteran's request in light of the award of benefits. In consideration of the foregoing, the Board finds that no further action is needed. FINDING OF FACT The service-connected residual scar, status post laceration of the right groin, which measures 0.1 inches by 7 inches, is asymptomatic with the exception of slightly diminished sensation over the scar; the superficial scar does not cause limitation of function or limited motion, and is not unstable or painful on examination. CONCLUSION OF LAW The criteria for a compensable disability rating for the Veteran's residual scar, status post laceration of the right groin are not met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.118, Diagnostic Code 7805 (prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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). 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. 38 C.F.R. § 3.159(b)(1). 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). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental statement of the case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a May 2006 notice letter sent prior to the initial denial of the claim, the RO advised the Veteran that he may submit evidence showing that his claimed service-connected right groin laceration disability had increased in severity, and described the types of information and evidence that he should submit in support of his claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his increased rating claim. In an earlier letter sent in March 2006, the RO explained to the Veteran how VA determines the disability rating and the effective date. In consideration thereof, the Board finds that these notice letters collectively satisfied VCAA notice requirements. The Veteran and his agent have also been provided with copies of the above rating decision, the November 2007 SOC, and the June 2009 and May 2012 SSOCs, which collectively include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the RO afforded the Veteran with VA medical examinations in connection with his increased rating claims in June 2006 and January 2011. The Veteran had previously been afforded with a VA medical examination in July 2005 in connection with an earlier increased rating claim. The medical examination reports collectively include all relevant findings and medical opinions needed to evaluate fairly the Veteran's claim. The June 2006 VA medical examiner reviewed the claims file prior to the examination and provided a thorough description of the size and relevant characteristics of the scar. Although no claims file was available for review at the time of the July 2005 and January 2011 VA medical examinations, the July 2005 VA medical examiner considered the Veteran's subjective complaints (i.e., none) and provided a thorough physical examination of the scar. The January 2011 VA medical examiner otherwise obtained a thorough and accurate history that, coupled with the history and complaints taken from the Veteran, and current examination of the Veteran, was adequate for the issue of increased rating. The VA examiner reviewed the Veteran's VA treatment records and prior medical examination reports through CPRS Computerized Patient Record System (CPRS) and performed a thorough physical evaluation of the Veteran's right groin scar. The January 2011 VA medical examiner also provided adequate description of the size and characteristics needed to evaluate the Veteran's disability. In consideration thereof, the Board finds that all of the VA medical examiners had adequate facts and data regarding the history and condition of the Veteran's right groin scar disability. Such claims file review is not necessary in increased rating cases where the examiner otherwise obtained a thorough and accurate history of the disability being rated. See VAOPGCPREC 20-95 (interpreting that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide, so that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). There has been no allegation or indication that there has been a material change in condition of the Veteran's scar disability since the last medical examination. For these reasons, the Board finds that the medical examination reports are adequate for rating purposes, and there is no need for further medical examination. See also Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (stating that, 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). Also, post-service treatment records adequately identified as relevant to the Veteran's claim have been obtained, or otherwise submitted, and are associated with the record. The additional treatment records found in the Virtual VA folder contain no evidence pertinent to the increased rating claim. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim decided herein. In view of the foregoing, the Board will proceed with appellate review. Rating Right Groin Laceration Scar Disability Disability Rating Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence in this case. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Service connection for the Veteran's right leg wound (i.e., groin) residual scar, with a noncompensable rating effective May 27, 1997, was originally awarded by the RO in October 1997. The Veteran filed the current claim seeking an increased rating for the already service-connected disability in January 2006. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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). During the pendency of the claim/appeal, the rating criteria for evaluating skin disorders, to include scars, were revised. See 73 Fed. Reg. 54,708 -12 (Sept. 23, 2008). The effective date of the revisions is October 23, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. In this case, the Veteran filed his increased rating claim before October 23, 2008; therefore, the revised criteria do not apply. Although the amendment allows for a veteran to request a review of a scar disability under the revised criteria irrespective of whether such veteran's disability has increased since the last review, no such request has been made in this case. See 77 Fed. Reg. 2909 -10 (Jan. 20, 2012). Schedular Rating Analysis The Veteran's residual scar status post laceration of the right groin has been rated under the criteria found at 38 C.F.R § 4.114. The disability is rated as noncompensable (i.e., zero percent disabling) under Diagnostic Code 7805 for scars rated on limitation of the affected part, which rates based on functional impairment involving the genitourinary system. See 38 C.F.R. § 4.115a-b, Diagnostic Codes 7500-7629. The Veteran has alleged that his right groin scar disability has caused him to suffer various urinary difficulties. See, e.g., May 2012 written statement (noting the Veteran's complaints of having to wear diapers, urinary infections, and having no control of urination due to right leg groin laceration); see also November 2010 DRO hearing transcript, page 2 (noting the Veteran's complaint that he did not have "any control of [his] water.") The Board recognizes that the Veteran's urinary problems are well-documented in the record. For example, a February 2010 private hospital record includes urinary incontinence with history of urinary obstruction requiring self-catheterization and recurrent urinary tract infections (UTI). However, based on evidence of urinary complaints since the July 1968 surgery, the RO granted service connection for urethra stricture (claimed as prostate urinal infection) with a 40 percent disability rating effective June 18, 2009. See September 2010 rating decision. The disability is rated under Diagnostic Code 7518 for urethra stricture, rated as voiding dysfunction, and the assigned rating specifically contemplates the required wearing of absorbent materials which must be changed two to four times per day; therefore, as the Veteran's urinary difficulties are already being compensated in a separate disability rating, an increased evaluation of the Veteran's scar disability based on urinary problems is not permissible. 38 C.F.R. § 4.14. In turning to other potentially applicable diagnostic codes under 38 C.F.R. § 4.118 pertaining to the rating of scars, the Board notes that the Veteran asserted at the November 2010 DRO hearing that he had pain associated with his right groin scar disability. See November 2010 DRO hearing transcript, page 3-4. Under Diagnostic Code 7804, a 10 percent evaluation is provided for a scar that is superficial and painful on examination. This is the highest evaluation available under this diagnostic code. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (prior to October 23, 2008). Nonetheless, when the scar was examined approximately two months later at the January 2011 VA scars examination, the VA medical examiner specifically noted that the superficial right groin scar measuring 0.1 inches by 7 inches was not painful. Also, the Veteran's right groin scar had previously been described as "asymptomatic" by the July 2005 VA medical examiner. The June 2006 VA medical examiner similarly noted that the Veteran's scar was "well healed" and that there was no local tenderness over the scar or proximal part of the thigh. Based on this evidence, and despite the Veteran's assertions of pain associated with the scar, the more specific and more probative VA medical examination reports relevant to the appeal period show an asymptomatic and nontender scar. There are no contrary findings contained in the Veteran's treatment records. The rating criteria under Diagnostic Code 7804 specifically require that pain be demonstrated "on examination." Furthermore, the Veteran's November 2010 DRO hearing testimony suggests that the pain was actually associated with urinary disability rather than the scar itself. See November 2010 DRO hearing transcript, page 3. For these reasons, the Board finds the findings of the VA medical examiners to be more credible and affords them greater probative value than the Veteran's unsupported lay assertion; therefore, the assignment of a 10 percent under Diagnostic Code 7804 for painful scarring is not warranted. Moreover, the Board has considered whether the Veteran is entitled to an increased rating for his residual right groin scar based on scarring other than on the head, face, or neck, that is deep or that causes limited motion (Diagnostic Code 7801); scarring other than the head, face, or neck, that is superficial and does not cause limited motion and covers an area of 144 square inches or greater (Diagnostic Code 7802); and unstable scarring (Diagnostic Code 7803); however, the weight of the evidence is against any such findings. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also 38 C.F.R. § 4.118, Diagnostic Codes 7801-7803 (prior to October 23, 2008). The January 2011 VA medical examiner specifically noted that the Veteran's superficial scar, which measured 0.1 inches in width and 7 inches in length, demonstrated no signs of skin breakdown, inflammation, edema, or keloid formation and had no other disabling effects. Similarly, the June 2006 VA medical examiner noted that the scar was well-healed, slightly depressed, showed no keloid changes, and was not elevated. While the June 2006 VA medical examiner noted that sensations were slightly diminished over the scar, he also noted that sensation was otherwise intact in other parts of the lower extremity. The June 2006 VA medical examiner added that there was no evidence of inflammation, infection or cellulitis demonstrated with the scar. Furthermore, the July 2005 VA medical examiner noted that the scar measuring 7 inches by 0.1 inches was asymptomatic. For these reasons, the Board finds that the weight of the evidence is against the assignment of a compensable disability rating under any of these diagnostic codes. Extraschedular Consideration The Board has further considered whether the increased rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the currently assigned noncompensable rating. As stated above, with the exception of slightly diminished sensation over the right groin scar, it is otherwise asymptomatic. The Veteran's complaints of pain were not demonstrated at VA medical examinations performed during the period at issue and his urinary disability is separately compensated with a 40 percent disability rating under Diagnostic Code 7518. The evidence shows that the scar itself does not result in any disabling characteristics or functional impairment. While the schedular criteria under Diagnostic Code 7805 do not specify the symptomatology/criteria for a noncompensable rating, a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. In this case, the Veteran's residual right groin scar disability does not meet the schedular criteria for a compensable rating under any potentially applicable diagnostic code. As stated above, the scar is essentially asymptomatic and without any disabling effects. The January 2011 VA medical examiner specifically stated that the Veteran's scar disability had no significant effects on his occupation and no effects on his usual daily activities. The Veteran himself even stated that the time lost from work for the past twelve months had been due to other reasons and not his residual right groin scar disability; therefore, the Board finds that manifestations of the Veteran's residual right groin scar disability are fully contemplated in the currently assigned noncompensable rating under Diagnostic Code 7805. Id. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's residual right groin scar disability, and referral for consideration of extraschedular rating is not necessary. Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. In this case, neither the Veteran nor the evidence suggests unemployability due to service-connected disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is shown to have been employed throughout the period at issue in this case. The January 2011 VA scars examination report notes that the Veteran was employed full-time in maintenance and had lost six weeks of work for other reasons, and not for the service-connected laceration scar disability. Therefore, the issue of individual unemployability is reasonably raised by the record, so is not part of the increased rating claim on appeal. ORDER An increased (compensable) disability rating for service-connected residual laceration scar of the right groin is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs