Citation Nr: 1313331	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO. 07-18 714	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an increased rating in excess of 10 percent for residuals of a laceration on the right bicep (dominant). 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Finn, Counsel



INTRODUCTION

The Veteran served on active duty from July 1971 to July 1974; November 2003 to April 2004; and from August 2004 to December 2005. Service with the reserve component is also reported. 

This matter is 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 Columbia, South Carolina.

In November 2007, the Veteran testified at a RO hearing. A transcript of the hearing is of record. 

In a December 2007 rating decision, the Veteran was granted service connection for hearing loss, effective December 21, 2005. The Veteran has not submitted a Notice of Disagreement as to any aspect of the rating decision, and it is therefore no longer on appeal.

The appeal was remanded in February 2011 for further development.

A review of the Veteran's electronic ("Virtual VA") paperless claims file does not reflect additional treatment records. ("Virtual VA" is a highly secured electronic repository used to store and review every document involved in the claims process). 


FINDING OF FACT

The laceration scar on the right bicep is painful, deep, and tender and measured a maximum width of 1.5 cm and a maximum length of 9 cm. 




CONCLUSION OF LAW

The criteria for a separate initial 10 percent rating for a laceration scar of the right bicep are met. 38 U.S.C.A. §§ 4.14, 4.118, DCs 7804, 7805 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1).

An October 2006 pre-adjudication letter explained the evidence necessary to substantiate a claim for an increased rating. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.

The Veteran was also notified of how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). 

The claims file contains VA treatment records; VA medical examinations dated in December 2006 and March 2011; and lay statements and testimony from the Veteran.

VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the March 2011 report reflects review of the claims file and assessment of the Veteran's contentions and disabilities with regard to his scar, the report is adequate to rate the scar. The duty to assist in the gathering of records and a VA examination has been met and the RO/AMC has substantially completed the February 2011 remand directives by obtaining VA treatment records and affording the Veteran an examination of the scar. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide his claim. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012).

Laceration Scar of the Right Bicep
 
Currently, the Veteran is assigned a 10 percent rating for evaluation of residuals, laceration right biceps under diagnostic codes (DCs) 7805-5305, effective from September 22, 1986. Hyphenated DCs are used when a rating under one DC requires the use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 

The Veteran was afforded a VA muscles examination in December 2006, when the examiner diagnosed him with a laceration of the right biceps muscle. Based on these findings, the RO continued his 10 percent disability evaluation for a "moderate" muscle disability. The appeal for a higher rating will be denied. 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155. If two evaluations are potentially applicable, 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.

"Staged" ratings are appropriate when the factual finds show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

For impairment of an upper extremity, the disability rating assigned depends on whether the extremity is the major extremity or the minor extremity. The major extremity is the one predominantly used. 38 C.F.R. § 4.69. The evidence reveals that the Veteran is right handed. (See STRs). Thus, his right upper extremity is the major extremity

The rating criteria for evaluating scars under 38 C.F.R. § 4.118, DCs 7800-7805 were amended during the pendency of this appeal (effective October 23, 2008). While the revised criteria apply only to applications for benefits received by VA on or after the effective date of October 23, 2008, a Veteran who was rated under DCs 7800-7805 before October 23, 2008 can request review under the new regulations. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). The Veteran's request for an increased rating was received in September 2006 and although he has not requested review of this matter under the revised criteria, the Board finds that under either version, an increased rating is not warranted. 

The rating criteria in effect when the Veteran submitted his claim are as follows: 

Under DC 7801, a 10 percent rating is warranted for scars, located other than on the head, face, or neck, that is deep or causes limited motion where the area or area exceeds 6 square inches. A 20 percent rating is warranted where the area or areas exceeds 12 square inches (77 sq. cm.).

Under DC 7802, pertaining to scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion, a 10 percent rating is warranted where there is an area or areas 122 square inches (929 sq. cm. or greater).

DC 7803 states that superficial scars that are poorly nourished, with repeated ulceration are assigned a 10 percent rating.

DC 7804 provides for a 10 percent evaluation for superficial scars, which are tender and painful on objective demonstration. 

This DC defines an unstable scar as one where, for any reason, there was frequent loss of covering of the skin over the scar. 

Scars were also rated based on the limitation of function of the affected part. See DC 7805.

Effective October 23, 2008, DC 7803 was eliminated, and DC 7804 was changed to encompass both unstable and/or painful scars. Under the revised DC 7804 different ratings are available based on whether there are two or less scars as opposed to more than two scars. 38 C.F.R. § 4.118. A 10 percent rating is available for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or four scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. Id. Scars evaluated under DCs 7800, 7801, 7802 or 7805 may also receive an evaluation under DC 7804 when applicable. Id. 

A December 2006 VA muscle examination reflects a reported history of flare-ups of pain and weakness of the right arm. His symptoms were aggravated by repetitive lifting and occasional decreased mobility and weakness of his right arm with intermittent pain. However, the Veteran reported that he did not experience limitation of activity because of flare-ups. He reported that he was able to carry a load of 25 pounds with his right arm and he volunteered information that he could carry a loaded suitcase. The Veteran reported that he was employed as a plant maintenance worker and that his work was unaffected by his right arm injury.

Upon examination of the right upper extremity, the Veteran had a transverse scar across the body of his right bicep measuring approximately 2.5 inches in length. The scar was accompanied by a defect in the body of the muscle approximately 0.5 inches deep. The scar was nontender, but the bulk of the right bicep muscle was decreased overall. However, there were no adhesions or tendon damage. There was no bone, joint, or nerve damage. Muscle strength was rated 5/5 on the uninjured left side and 4/5 in elbow flexion on the injured side. There was no muscle herniation. The loss of functional activity included the ability to scratch and reach his upper back below the base of the neck. Range of motion was normal, but he experienced increased pain with repetition. He was diagnosed with laceration of the right biceps muscle. 

VA treatment records dated from March 2008 to October 2009 do not reflect treatment for his right bicep laceration.

A March 2011 VA examination reflects that the Veteran had a slightly curved scar over the mid arm on the flexor aspect .10 cm above the elbow from a laceration involving the underlying muscle and tendons. The maximum width was 1.5 cm and maximum length was 9 cm. Although the examiner reported that the scar was painful, there were no signs of skin breakdown or other disabling effects. The examiner diagnosed the Veteran with residuals, deep scar laceration to right mid arm from prior laceration, with residual pain. While the examiner observed that the Veteran had had difficulty with repetitive activity/physical activity with the right upper extremity, there were no effects on usual daily activities, the Veteran was employed full time as a helicopter mechanic although he assessed there were "significant effects" of the Veteran's disability on his occupational activities. . 

The medical evidence establishes that a laceration scar on the Veteran's right bicep is tender, and periodically painful. His scar as never been described as causing marked limitation of motion such that an increased rating under Diagnostic Codes 7805-5305 would be appropriately assigned under the former provisions of the rating schedule. As noted, the Veteran remains employed as a helicopter mechanic and has reported that flare ups of the disorder are not frequent. Similarly, an increased rating is not assignable under the revised criteria. Under 38 C.F.R. § 4.118, DC 7804, the Veteran has one scar that is painful, warranting continuation of the currently-assigned 10 percent evaluation.

Thus, regardless of the criteria used to evaluate the laceration scar, a separate 10 percent rating for the scar is warranted for the entire appeal period. Fenderson, supra. A higher rating for the scar is not warranted unless there is evidence of 3 or 4 scars that are unstable or painful; and/or the area exceeds 12 square inches. 

Referral for an extraschedular rating is also not appropriately undertaken. The action requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572, F.3d 1366 (Fed. Cir. 2009). The first question in such consideration is whether the assigned scheduler rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. At 115. If the criteria reasonably describe the claimant's disability level and symptoms, then the claimant's disability picture is contemplated by the rating schedule. If the scheduler evaluation is adequate, no referral is required.

Here, an initial 10 percent evaluation clearly contemplates the Veteran's resulting scar disorder. The objective findings and the Veteran's account indicate that he has pain, but only slight diminution of function within the rating schedule. 

Referral for consideration of extraschedular evaluation for a scar disability of the right bicep is not warranted. 38 C.F.R. § 3.321(b).


ORDER

The appeal is denied. 


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs