Citation Nr: 1314563 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-35 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 10 percent for residual right thigh shrapnel wound scars prior to October 23, 2008, and in excess of 20 percent since October 23, 2008. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to February 1985. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted a separate noncompensable evaluation for residual right thigh shrapnel wound scars, effective September 11, 2007. The Veteran requested a hearing before a Veterans Law Judge of the Board. In a subsequent August 2011 letter, the Veteran withdrew that request. Thus, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). Virtual VA, VA's paperless, electronic data storage system, contains no relevant evidence at this time. In August 2012 the Board remanded the case for further development. A January 2013 rating decision granted a 10 percent rating for right thigh shrapnel wound scars for the period from September 11, 2007 to October 22, 2008, and a 20 percent rating since October 23, 2008. As this represents only a partial grant of the maximum benefit sought, the appeal is continued and is again before the Board for adjudication. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. At all times prior to and after October 23, 2008, the Veteran's right thigh shrapnel wound scars were manifested by six separate scars, including three which are painful upon examination. 2. None of the Veteran's scars are unstable or cause limitation of function. The Veteran's deep scars do not collectively cover an area of or exceeding 39 square centimeters (centimeters) and his superficial scars do not collectively cover an area exceeding 929 square centimeters CONCLUSION OF LAW At all times prior to and after October 23, 2008, the Veteran has met the criteria for separate 10 percent ratings for each of his three painful right thigh shrapnel wound scars. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.20, 4.25(b), 4.118 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In this case, in a November 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, to include what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. He was advised how disability ratings and effective dates are assigned. The case was readjudicated in January 2013. VA has made reasonable efforts to assist the appellant by obtaining relevant records which he has adequately identified. This includes securing service, VA and private treatment records; and providing VA examinations. The Veteran was notified and is aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). The Veteran filed his claim of entitlement to an increased rating for residual right thigh shrapnel wounds on September 11, 2007. In March 2009 the RO granted separate evaluations for residual right thigh shrapnel wound scars and for osteoarthritis of the right knee. 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). Pursuant to the revised regulation, 38 C.F.R. § 4.118, a Veteran who has been rated by VA under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 prior to October 23, 2008 may request review under the new version of Diagnostic Codes 7800, 7801, 7802, 7804, and 7805 irrespective of whether the disability has increased since the last review. In the case at hand, the Veteran has requested no such review. While the AMC applied the criteria of the new regulation to the Veteran's claim in a January 2013 rating decision, the appropriate criteria for application in this case for the entirety of the period on appeal is that of the regulation in effect prior to October 23, 2008, and is set forth below. Prior to October 23, 2008, scars of other than the head, face, or neck that are deep or that cause limited motion were rated 10 percent disabling if involving an area or areas exceeding 6 square inches (39 square centimeters); 20 percent disabling if involving an area or areas exceeding 12 square inches (77 square centimeters); and 30 percent disabling if involving an area or areas exceeding 72 square inches (465 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Note (1) provided that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Id. Note (2) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. Id. Superficial scars of other than the head, face, or neck, which did not cause limited motion and which covered an area or areas of 144 square inches (929 square centimeters) or greater were assigned a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). A superficial scar was defined as one not associated with underlying soft tissue damage. Id. at Note (2). Superficial unstable scars were assigned a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). An unstable scar was defined as one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). Superficial scars which were painful on examination were assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Other scars were to be rated on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran sustained multiple right thigh shrapnel wounds in 1968 while serving in combat in the Republic of Vietnam. In a July 1985 rating decision he was service connected for residuals of right thigh shrapnel wounds, with right knee osteoarthritis, and assigned a 10 percent rating for effective from March 1985. In a March 2009 rating decision he was assigned a separate noncompensable evaluation for residual right thigh shrapnel wound scars. In a January 2013 rating decision the Veteran was granted a 10 percent evaluation for his scars from September 11, 2007 to October 22, 2008, and a 20 percent evaluation since October 23, 2008. The Veteran's VA treatment records contain no mention of complaints or treatment relating to scars, and he has not submitted any additional medical evidence relating to residual right thigh shrapnel wound scars. In December 2008 the Veteran was afforded a VA joint examination. The examiner noted that multiple healed surgical and sharp injury scars on the anterior and anterolateral aspect of the right thigh. The scars were described as "irregular of different lengths, supple, nontender, mobile and non-adherent to the underlying bone." In August 2012 the Veteran was given a VA scars examination. The examiner found that the Veteran had scars of the right thigh, left wrist, and foreskin due to a shrapnel injury. The Veteran reported that five of the scars on his right thigh were from shrapnel injury and one scar was a surgical scar from an A/V fistula with pseudo aneurism repair made necessary by the shrapnel injury. The Veteran also reported that three of his scars were painful after prolonged standing, sleeping with the left knee against the right knee, or when riding a bicycle. The examiner described the most distal scar of the right thigh as being stable but painful upon palpation, measuring four centimeters by one centimeter by one centimeter deep. The second scar was described by the examiner as thirteen centimeters by 0.5 centimeters, located mid-thigh, and painful with deep palpation. The third scar was noted to be on the inner, medial side of the thigh with some loss of underlying soft tissue, measuring seven centimeters by two centimeters The fourth scar was noted to be on the proximal right thigh with a one centimeter induration at the center and measuring three centimeters by two centimeters The fifth scar was noted to be a 19 centimeters linear, surgical scar on the right lateral side of the thigh. The sixth scar is noted to be a three centimeters linear scar at the proximal end of the surgical scar. The total area affected by deep non-linear scars on the right lower extremity was given as 30.5 square centimeters The examiner did not find that any of the Veteran's scars were unstable, caused limitation in motion or function, or impacted his ability to work. The examiner also noted two small, stable, linear, and superficial scars from shrapnel injury on the left wrist and a scar in the form of a 0.3 centimeter hole in the Veteran's foreskin of the penis. Based on the law and evidence described above, the Board concludes that the criteria for three separate 10 percent ratings for the Veteran's three painful scars is warranted for the periods prior to and since October 23, 2008. See 38 C.F.R. § 4.25(b) (2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). The Board notes that while the rating criteria for scars changed on October 23, 2008, the Veteran filed his claim in September 2007, i.e., before the criteria were changed, and at no point has he requested that his claim be considered under the revised criteria. See 38 C.F.R. § 4.118 (2012). The Veteran's claim is therefore rated solely under the prior regulations that were in effect at the time he filed his claim for an increased rating. There is currently only one highly probative, competent medical opinion of record: that of the August 2012 VA examiner. While the December 2008 VA examiner also made note of the Veteran's scars, that examination was not performed for the purpose of evaluating scars, and the examination report does not include sufficient detail and description of the scars to be useful in the current evaluation. Therefore, the evidence below will rely primarily on the evidence provided by the August 2012 examination report. While at least one of the Veteran's scars was noted by the August 2012 examiner to include some underlying soft tissue loss, the examiner found that the Veteran's non-linear scars currently occupied only a 30.5 square centimeter area. Hence, they did not exceed an area of 39 square centimeters as is required for a compensable rating for deep and non-linear scars based on area. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Further, the Veteran's scars have not been shown to be unstable or to have caused any functional limitation, nor has he asserted that they have. The examiner did, however, find that the Veteran has three separate scars on three different areas (i.e., the distal thigh, the medial thigh, and the mid thigh) which were tender or painful upon palpation. Under the regulation in effect prior to October 23, 2008, superficial scars which are painful upon examination are entitled to a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Unlike 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802 (2008), which require that only scars in widely separated areas should be assigned separate evaluations, under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008) each painful scar may be rated a separate 10 percent rating. Although one of these scars was noted to have underlying tissue loss, it may still be rated under Diagnostic Code 7804 (2008), as there is no separate Diagnostic Code for scars which are both deep (non-superficial) and painful. 38 C.F.R. § 4.20 ("When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous."). The Board also finds that a rating in excess of 10 percent is not warranted for any of the Veteran's scars under Diagnostic Codes 7801-7805 (2008). There is no evidence of any limitation of thigh function or instability, and the total area of the Veteran's scars does not meet the minimum area required for a rating based on Diagnostic Code 7801 (2008). The Veteran's non-painful scars are also not entitled to a separate evaluation, as they have not been shown to be unstable or to cause any limitation of function. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7805 (2008). The August 2012 examiner's opinion is not contradicted by any medical evidence of record, and the Veteran has not asserted that his scars are worse than described by the August 2012 examiner. The Veteran's August 2012 examination also indicates that he has two stable, superficial, non-painful, and linear scars on his left wrist and a circular scar on his penis. The Board notes that while these scars affect a separate extremity and the anterior portion of the trunk, these scars do not warrant a separate evaluation, as they do not meet the rating criteria necessary to enable a compensable evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7801 at Note (1) (2008). In reaching the above conclusions, the Board has not overlooked the lay statements found in the record. In this regard, the Veteran is competent to report on what he sees and feels, such as the size of a scar and pain, and others are credible to report on what they can see, such as the size of a scar. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because neither the Veteran nor his representative provided their own measurements as to the size of the three scars or descriptions of the scars, the only competent and credible medical opinion as to their size and severity was that which was provided by the qualified medical professional at the August 2012 VA examination. That examination was adequately performed by a qualified examiner who reviewed the claims file and fully examined the Veteran. The August 2012 examination is therefore highly probative evidence of the Veteran's current disability level. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches"). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Veteran has not asserted that his scars have had any impact on employment or functioning, nor has he ever required hospitalization for his scars during the period of the present appeal. Here, the rating criteria quite specifically describe the Veteran's disability level and symptomatology; thus, his disability picture is what is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to separate 10 percent ratings for each of the Veteran's three painful residual right thigh shrapnel wound scars prior to and after October 23, 2008 is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs