Citation Nr: 1308397 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 09-10 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for a service-connected surgical scar on the neck (neck scar). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from September 1995 to January 1996, from February 2003 to November 2003, and from December 2005 to November 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the January 2007 decision, the Atlanta RO granted service connection and assigned an initial noncompensable (0 percent) rating for neck scar, effective December 1, 2006, the date of grant of service connection (day following discharge from active service). In July 2007, the Veteran entered a notice of disagreement (NOD) with the initial rating for neck scar assigned in the January 2007 rating decision. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for neck scar, the Board has characterized the issue as one of entitlement to a higher initial disability rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in January 2011. A transcript of the hearing has been associated with the claims file. The claim at issue was previously remanded by the Board in July 2012 for further development of clarifying the Veteran's current rating for her service-connected neck scar. This was accomplished, and the claim was readjudicated in a January 2013 supplemental statement of the case. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board notes that the Veteran is currently employed. She has not alleged unemployability due to her service-connected scar, and the matter of entitlement to a total rating based on individual unemployability due to service-connected disabilities is not raised by either the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT For the entire initial rating period, the Veteran had a superficial scar on her neck that was tender on palpation. CONCLUSION OF LAW For the entire initial rating period, resolving all reasonable doubt in the Veteran's favor, the criteria for an initial disability rating of 10 percent for service-connected neck scar has been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, and 7805 (prior to Oct. 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 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. See 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. Initial Disability Rating for Neck Scar The present appeal involves the Veteran's contention that the severity of her service-connected neck scar, warrants a higher initial disability rating. Essentially, the Veteran contends that the noncompensable evaluation she has received for that condition does not accurately reflect its severity. During the course of the Veteran's appeal, VA revised the rating criteria for evaluating scars, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008). However, the amendments are only effective for claims filed on or after October 23, 2008, unless a claimant requests consideration under the amended criteria. In this case, neither the Veteran, nor her representative, has requested such consideration. As such, the criteria in effect at the time the Veteran's claim was received are applicable. The Veteran's neck scar is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7805; scars on the neck are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), as scars (Diagnostic Codes 7803, 7804), or as impairment of function (Diagnostic Code 7805). Under Diagnostic Code 7800, ratings for scars that impact the head, face, or neck are based on the number of characteristics of disfigurement present. The eight characteristics of disfigurement, as listed in Note 1, include the following: (1) scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurate and inflexible in an area exceeding six square inches (39 square centimeters). A rating of 10 percent requires one characteristic of disfigurement. A rating of 30 percent is warranted where there are two or three characteristics of disfigurement, a rating of 50 percent is warranted where there are four characteristics of disfigurement, and a rating of 80 percent is warranted where there are six or more characteristics of disfigurement. Ratings of 30, 50, and 80 percent are also warranted where there is visible or palpable tissue loss and additional symptomatology. For example, a 30 percent rating may be assigned when a scar has 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, or lips). Diagnostic Code 7803 notes that unstable superficial scars are evaluated as 10 percent disabling. Note (1) following indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (prior to October 23, 2008). The next criteria, that of Diagnostic Code 7804, provides that superficial scars that are painful on examination are rated as 10 percent disabling. Note (1) following states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) states that in this case, a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation (See 38 C.F.R. § 4.68 of this part on the amputation rule). Finally, Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. 38 C.F.R. Part 4. In January 2007, on VA examination, the VA examiner reported a 3.5 cm well-healed scar on the Veteran's anterior right neck from her neck surgery. In a November 2007 VA treatment record, the VA examiner reported skin was intact with no rashes. In a December 2007 VA treatment record, the VA examiner reported skin was intact with no rashes. In a January 2008 VA treatment record, the VA examiner reported skin was intact with no rashes, providing evidence against this claim. In a February 2008 VA treatment record, the VA examiner reported skin was intact with no rashes. In an October 2009 VA treatment record, the Veteran reported neck skin tenderness. In an August 2010 VA treatment record, the VA examiner reported right well-healed anterior neck surgical scar and skin was intact with no rashes. In an October 2010 VA treatment record, the VA examiner reported right well-healed anterior neck surgical scar and skin was intact with no rashes. In a separate October 2010 VA treatment record, the Veteran reported neck skin tenderness. In the January 2011 Board personal hearing, the Veteran testified that the neck scar gets puffy and irritated in the summertime. She testified that she could not wear jewelry on her neck, because that irritated the scar and also testified that she believed her scar is disfiguring and that she has heard negative remarks concerning the scar. In a February 2011 VA treatment record, the Veteran reported skin tenderness of her neck. In a May 2011 VA treatment record, the Veteran reported no skin tenderness, swelling, or pain of her neck. In October 2011, on VA examination, the VA examiner reported the widest area of scarring was 3 cm x .5 cm on the neck approximately 4 cm above the clavicle. The VA examiner reported there was no elevation, depression, adherence to underlying tissue, or missing underlying tissue. The neck scar was not painful or unstable on examination and there was no frequent loss of the covering of the skin over the scar. The VA examiner also reported 1.5 square centimeters of hyperpigmentation. The VA examiner opined that the Veteran's neck scar did not cause any limitation of function, there were no other complications related to the Veteran's neck scar, and the Veteran's neck scar did not impact her ability to work. The diagnosis provided was a well-healed surgical scar, providing more evidence against this claim beyond 10 percent. In a June 2012 VA treatment record, the VA examiner reported a palpable decrease in soft tissue upper back/neck tonicity. In this case, the evidence shows one superficial scar on the Veteran's neck that has been tender to palpation throughout the entire initial rating period. Although the rating criteria only discuss scars that are painful on examination, tenderness is a quality of pain. Webster's New College Dictionary 1162 (Houghton Mifflin Publishing 2008). A 10 percent rating is the maximum rating under Diagnostic Code 7804 for superficial scars that are painful on examination. 38 C.F.R. § 4.118. The Board then turns to other possibly applicable diagnostic codes relating to the Veteran's neck scar. The Board notes that the scar is on the Veteran's neck and as such Diagnostic Codes 7801 and 7802, which refer to scars other than those on the head face or neck, are not applicable. The Veteran has not described, and the evidence does not otherwise show, that the Veteran's scars have affected the functioning of her cheek, jaw, or neck. Thus, DC 7805 is not applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). For Diagnostic Code 7800, as noted above, a scar must meet at least one of the eight characteristics of disfigurement to warrant a compensable rating, and must meet two or three characteristics of disfigurement for a rating of 30 percent. As described above, the Veteran's neck scar simply does not meet any of the following criteria. It is less than 13 centimeters in length, as it measured only 3 cms at most. The scar was not 0.6 cms wide at widest part, as the measurements showed at most 0.5 cm. The scar was not adherent to underlying tissue and was not elevated or depressed. Finally, the scar did not cover an area exceeding six square inches (39 square centimeters) which is the basic requirement for the four remaining characteristics of disfigurement. As noted above, ratings of 30, 50, and 80 percent are available where there is visible or palpable tissue loss and additional symptomatology, but here, while the June 2012 VA examiner acknowledged palpable tissue loss, the October 2011 VA examiner specifically stated that there was no visible or palpable tissue loss and no distortion or asymmetry. The October 2011 VA examiner also reported that there were no other complications related to the Veteran's neck scar. As such, a 30 percent schedular rating is not warranted based on these criteria. While it is clear that the scar does cause the Veteran's some problems, the question before the Board is whether those problems provide a basis to award a compensable evaluation. For these reasons, the Board finds that the evidence supports a grant of a higher initial disability rating of 10 percent for neck scar for the entire initial rating period. To the extent any higher level of compensation than 10 percent is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for service-connected residuals of shrapnel wounds to the back that includes scars. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2011). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's scars are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 7804, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's scar has manifested a scar that is tender to the touch. These symptoms are part of the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] 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. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's scars on his back, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was met by way of a letter from the RO to the Veteran dated in December 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that this appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded a VA examination pertaining to the issue on appeal during the pendency of the appeal. The report from this examination reflects that the examiner reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical and mental examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the RO has satisfied the duty to notify and the duty to assist. ORDER An initial disability rating of 10 percent, but no higher, for service-connected neck scar is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs