Citation Nr: 1312356 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 11-03 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date prior to January 15, 2010, for the assignment of a separate 10 percent rating for a tender surgical scar on the mid line of the back associated with degenerative changes and disc disease of the thoracolumbar spine with left hip pain. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and issued by the RO in White River Junction, Vermont. Jurisdiction of the Veteran's claims file was subsequently transferred to the RO in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge sitting at the Phoenix RO in May 2012. A transcript of this hearing is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran underwent surgery for his service-connected lumbar spine disability at a VA medical facility on March 21, 2000, and a VA surgical treatment report of record on this date constituted an informal claim for an increased rating for the service-connected lumbar spine disability on the basis of entitlement to a separate rating for a tender surgical scar on the midline of the back. 2. Resolving all doubt in favor of the Veteran, an increase in service-connected lumbar spine disability represented by a tender surgical scar on the midline of the back warranting entitlement to a separate initial 10 percent rating was factually ascertainable as of March 21, 2000. CONCLUSION OF LAW An effective date of March 21, 2000, for the award of a separate 10 percent rating for a tender surgical scar on the midline of the back is warranted. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400, 4.118, Diagnostic Code (DC) 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to grant the earliest effective date possible for a separate 10 percent rating for a scar on the back, i.e., the date of its inception, is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. This fact notwithstanding, as the Veteran's claim for an earlier effective date arises from an appeal of the initial effective date assigned following the initial assignment of a separate 10 percent rating for the service connected scarring at issue, the claim has been substantiated and no further notice is needed under the VCAA. Hartman v. Nicholson, 483 F.3d 1311(Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, as relevant to the duty to assist, as the Veteran has been assigned the earliest possible effective date and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. In this regard, VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Additionally, in May 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), it was held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2012 hearing, the Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the history of the Veteran's symptomatology associated with the scarring in question that, as set forth below, has assisted in the determination made in this decision. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, given the nature of the claim at issue, in which the determination of entitlement to an effective date must be based on the evidence and correspondence currently of record, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). Thus, when addressing the effective date for an award of increased compensation, the Board must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. With respect to the first of these determinations, the Board notes that once a formal claim for VA benefits has been filed, a subsequent informal request for increase will be accepted as a claim. 38 C.F.R. § 3.155(c). Generally, the informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Additionally, VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157. Under 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Otherwise, in the case of evidence from a private physician, date of receipt of any record or report will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. By way of background, service connection for a lumbar spine disability, characterized at that time as disc herniation of the lumbosacral spine at L4-L5 with radicular pain radiating to the left leg and foot, was granted by a December 1998 rating decision. At such time, an initial rating of 10 percent was assigned, effective December 1, 1997. A June 1999 rating decision subsequently increased the Veteran's rating to 20 percent, effective December 30, 1998. The Veteran was hospitalized with a diagnosis of left L4-5 herniated nucleus pulposus at the VA Medical Center in Tucson, Arizona, from March 21, 2000, to March 23, 2000, and underwent a L4-L5 microdiscectomy on March 21, 2000. The surgical and hospitalization report reflect that the Veteran complained of moderate pain at the surgery sites. A temporary 100 percent convalescent rating under 38 C.F.R. § 4.30 was assigned for residuals of this surgery by an April 2000 rating decision. Specifically, such temporary total evaluation was assigned from March 21, 2000, through April 30, 2000, and the 20 percent rating was reinstituted from May 1, 2000. A one month extension of these benefits was granted by a June 2000 rating decision and the 20 percent evaluation was reinstituted effective June 1, 2000. Neither rating decision adjudicated a claim for a separate rating for a symptomatic scar associated with such surgery. In March 2003, the Veteran filed for an increased rating for his back disability. Upon VA examination in March 2003, the Veteran reported that there were no surgical complications from the March 2000 surgery and that he had complete relief of his back pain for a total of three months after this surgery but that the pain recurred thereafter in a different form described as "soreness" that was "constant" but without bilateral lower extremity radiation. The physical examination at that time showed a midline hypopigmented and non-hypertrophic scar in the torso that was approximately seven centimeters in length and 3 millimeters in width. This scar was said to be nontender on palpation without any subcutaneous masses. However, a VA outpatient treatment report dated earlier in that month indicated that, upon physical examination, the Veteran had tenderness over the lumbosacral spine incision. Thereafter, a March 2004 rating decision continued the Veteran's 20 percent rating for his back disability, but did not adjudicate the issue of a separate rating for a symptomatic scar. In August 2007, the Veteran filed another claim for an increased rating for his service-connected back disability, but did not specifically mention his scar. A March 2008 rating decision again continued the Veteran's 20 percent rating for his back disability, but did not adjudicate the issue of a separate rating for a symptomatic scar. On January 15, 2010, a claim for an increased rating for service-connected back disability, and service connection for degenerative joint disease as secondary to the service-connected back disability, was received from a Veterans Service Officer at the VA RO in White River Junction, Vermont. This claim was dated July 14, 2009, and was said to be a "second letter." Testimony at the hearing before the undersigned was to the effect that the original claim was filed in August 2007, but was lost. (May 2012 hearing transcript, Pages 6, 7). However, as indicated previously, a claim for an increased rating was received in August 2007, but did not explicitly address the Veteran's scar. A March 2010 VA examination, in pertinent, part showed a midline surgical scar measuring three inches in length that was tender to touch. Thereafter, an April 2010 rating decision continued the 20 percent rating for the service-connected lumbar spine disability but recharacterized such disability as "degenerative changes and disc disease of the thoracolumbar spine with left hip pain." This decision also granted a separate 10 percent rating for a tender scar on the mid line of the back (under 38 C.F.R. § 4.118, DC 7804) associated with the service-connected lumbar spine disability, effective January 15, 2010, the date VA received the Veteran's most recent claim for an increased rating for his back disability. The Board notes that the hospitalization and surgical report from the March 21, 2000, lumbar spine surgery that resulted in the surgical scarring in question are of record, and the Board finds that this report constitutes an informal claim for increase under section 3.157(b)(1). Moreover, the Veteran testified to the undersigned that the scarring in question has been tender since this surgery was performed, and a March 2003 VA outpatient treatment report documents such tenderness. As such, and while the scarring was said to not be tender at the March 2003 VA examination, the Board will resolve all doubt in favor the Veteran and conclude that it was "factually ascertainable" that an increase in disability occurred on March 21, 2000, such that entitlement to a separate 10 percent rating for a tender a scar under DC 7804 arose on that date. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.400(o)(2), Gilbert, supra. Therefore, and given that March 21, 2000, is both the date of claim and the date an increase in disability was factually ascertainable, the Board concludes that an earlier effective date for the 10 percent initial rating for a tender surgical scar on the mid line of the back associated with degenerative changes and disc disease of the thoracolumbar spine with left hip pain is warranted effective such date, but no earlier. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). ORDER An effective date of March 21, 2000, but no earlier, for a separate 10 percent rating for a tender surgical scar on the mid line of the back associated with degenerative changes and disc disease of the thoracolumbar spine with left hip pain is granted, subject to regulations governing the payment of monetary awards. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs