Citation Nr: 1307595 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-32 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for scarring secondary to left ovary removal. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The January 2009 rating decision granted entitlement to service connection for a scar secondary to left ovary removal and assigned a 0 percent (noncompensable) rating, effective March 27, 2008. In a September 2011 rating decision that was issued in the course of this appeal, the rating for this disability was increased to 10 percent, effective March 27, 2008. Because this increase constitutes less than a full grant of the benefit sought, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In January 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The issue of entitlement to service connection for an acquired psychiatric disability, claimed as secondary to removal of the left ovary, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's scarring secondary to removal of the left ovary is manifested by reports of pain and tenderness to the touch. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for scarring as secondary to removal of the left ovary have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800 through 7805 (effective prior to October 23, 2008; 4.118, Diagnostic Codes 7800 through 7805 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2012)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. However, for initial rating claims, where, as here, entitlement to disability benefits has been granted and an initial rating has been assigned, the original claim has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for entitlement to benefits has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Board does note that a March 2008 notification form that was issued to the Veteran at the time she filed her claim and an April 2008 letter advised the Veteran of the evidence needed to substantiate her initial service connection claim, while August 2010 and January 2012 letters provided this information with respect to the increased rating element of this claim. These pieces of correspondence advised the Veteran of her and VA's responsibilities under VCAA, to include what evidence should be provided by her and what evidence should be provided by VA. These correspondences also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of her claim, pursuant to the Court's holding in Dingess, supra The Board notes that the August 2010 and January 2012 notice letters were not issued prior to the initial adjudication of the Veteran's claim in January 2009. Her claim, however, was subsequently readjudicated in supplemental statements of the case dated in September 2011 and July 2012. Thus, any deficiencies in the timeliness of these notice letters would not be prejudicial. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issue on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's VA medical records and records from the Social Security Administration. The Veteran also underwent a VA examination in connection with this claim in March 2011. The Board finds that this examination report is adequate for the purpose of determining entitlement to an increased rating. The examiner elicited from the Veteran her history of complaints and symptoms, and the examination report contains the physical examination findings that are necessary in order to properly evaluate the Veteran's scar. For these reasons, the Board concludes that the March 2011 examination report in this case provides adequate bases for a decision. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Disability evaluations are determined by the application of VA's 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. The Board notes that the regulations pertaining to rating skin disabilities were revised effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Nonetheless, given that the RO has informed the Veteran that the new criteria apply and has evaluated the severity of her disability pursuant to these criteria, and given that consideration of the Veteran's disability under the new criteria does not result in a rating that differs from the rating assigned under the old criteria, the Board will evaluate the Veteran's skin disability under both the old and the new rating criteria. The Board notes, however, that VA cannot apply the revised regulations for any date prior to the change in the regulations. Thus, the Board may consider only the former version of the regulations prior to October 23, 2008. The Veteran has claimed entitlement to an initial disability rating in excess of 10 percent for service-connected scarring associated with removal of her left ovary. This disability is currently rated under the older rating criteria of 38 C.F.R. § 4.118, Diagnostic Code 7804 (prior to October 23, 2008). This version of Diagnostic Code 7804 assigned a 10 percent rating for scars that are superficial and painful on examination. The 10 percent was the maximum rating available for each painful scar. The pertinent evidence of record with respect to the severity of the Veteran's scarring appears in the Veteran's personal statements and the March 2011 VA examination report. In her March 2008 claim, the Veteran reported that the scar at issue is tender to the touch. In her August 2009 substantive appeal, the Veteran described her scar as "painful to touch and disfiguring." In a July 2010 personal statement, the Veteran stated that "physically from time to time the bikini line incision area are sensitive to the touch. Not to mention the unsightly scar tissue...." The March 2011 VA examination report notes that the Veteran reported her residual scar has always been tender to the touch. She reported tenderness due to the pressure caused by certain items of clothing. She characterized her scar as "disfiguring." She denied having received treatment for her scar. On examination, her scar was noted to be a flesh-colored incision that was "very barely, barely visible." It was described as a low transverse incision measuring 16 centimeters by 0.2 millimeters with no tenderness. It was well-healed, and there was no attachment to the underlying skin. There was no evidence of any other scar residuals. As noted above, the 10 percent rating that is in effect for the Veteran's scar is the maximum rating that is available for a painful scar under the former rating criteria. 38 C.F.R. § 4.118, Diagnostic Code 7804 (prior to October 23, 2008). The September 2011 rating decision awarded the 10 percent rating based on the Veteran's credible reports of pain and tenderness. The March 2011 VA examination report notes only the single scar. Thus, separate 10 percent ratings are not available for any additional scars under the former Diagnostic Code 7804, and a rating in excess of 10 percent for the Veteran's scarring that is residual to her left ovary removal must be denied. Because the March 2011 VA examination report occurred following the change in the scar rating criteria, the Board will assess whether a rating in excess of 10 percent may be assigned under the revised Diagnostic Code 7804. Effective October 23, 2008, unstable or painful scars are rated under revised rating criteria of Diagnostic Code 7804. These new criteria assign a 10 percent rating for one or two unstable or painful scars, a 20 percent rating for three or four unstable or painful scars, and a 30 percent rating for five or more unstable or painful scars. Note (1) to this diagnostic code defines an unstable scar as one where there is frequent loss of covering of skin over the scar. Note (2) directs that an additional 10 percent be added to the evaluation if one or more scars are both unstable and painful. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. As noted above, the March 2011 VA examination report reflects that the Veteran has a single painful scar that is not unstable. Therefore, a rating in excess of 10 percent is not warranted under the revised Diagnostic Code 7804. The Board has also considered whether the Veteran may receive a higher rating for her service-connected scar under an alternative diagnostic code. Specifically, scars are evaluated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805. The Board will first consider whether a rating in excess of 10 percent is warranted under the old rating criteria, and will then determine whether the new criteria warrant the assignment of a higher rating. Of the old rating criteria, the Board need not consider Diagnostic Code 7800, which only applies to disabilities of the head, face, and neck. Because the Veteran's scar is not deep, Diagnostic Code 7801 is not applicable. Because a rating in excess of 10 percent is not available under Diagnostic Codes 7802 or 7803, these codes need not be further considered. Nor may an increased rating be assigned based on limitation of function under Diagnostic Code 7805, as the March 2011 VA examination report reflects that no such limitation is caused by the Veteran's scar. Thus, a rating in excess of 10 percent may not be assigned based on any of the old rating criteria that are applicable to scarring. The Board will next consider whether an increased rating may be assigned pursuant to the new rating criteria. Again, the Board need not further consider the revised rating criteria of Diagnostic Code 7800, which only apply to disabilities of the head, face, and neck. Again, because the Veteran's scar is not nonlinear and deep, Diagnostic Code 7801 is not applicable. The Board again notes that a rating in excess of 10 percent is not available under the revised Diagnostic Code 7802, and notes that the rating code revisions eliminated Diagnostic Code 7803 and incorporated it into Diagnostic Code 7804. Because, however, the revised rating criteria of Diagnostic Code 7804 allow the assignment of separate ratings under Diagnostic Codes 7800, 7801, 7802, or 7805, even when the Veteran is in receipt of a compensable rating under Diagnostic Code 7804, the Board must consider whether a separate, compensable rating is warranted under Diagnostic Code 7802. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3) (effective October 23, 2008). Diagnostic Code 7802 provides a rating for scars that are not on the head, face, or neck, that are superficial and nonlinear. A maximum 10 percent rating is assigned for scarring that covers an area or areas of at least 929 square centimeters. The appellant's scar in the case at hand measures 16 centimeters by 0.2 millimeters and clearly is not large enough to qualify for a compensable rating under Diagnostic Code 7802. Finally, the Board notes that the rating criteria of the revised Diagnostic Code 7805, measuring functional impairment, are the same as those of the former rating criteria. Again, the Board notes that the March 2011 VA examination report reflects that no such limitation is caused by the Veteran's scar. In light of the above, a rating in excess of 10 percent may not be assigned based on any of the revised rating criteria that are applicable to scarring. In summary, the Board finds that entitlement to a rating in excess of 10 percent is not warranted under either the former or the revised rating criteria of Diagnostic Codes 7800 through 7805 for the Veteran's scarring as a residual to the surgery to remove her left ovary. The Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to a rating in excess of 10 percent for scarring secondary to left ovary removal must be denied. In reaching this conclusion, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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, 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's scarring is inadequate. The applicable rating criteria contemplate the Veteran's complaints of pain, and a comparison between the level of severity and symptomatology of the Veteran's scarring with the established criteria shows that the rating criteria reasonably describe the disability level and symptomatology attributable to the Veteran's service-connected scarring. In short, there is nothing in the record to indicate that the service-connected scarring causes impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The Board notes that service connection is also in effect for removal of the left ovary, evaluated as noncompensable. Special monthly compensation on account of loss of use of a creative organ also has been awarded. ORDER Entitlement to an initial evaluation in excess of 10 percent for scarring secondary to left ovary removal is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs