Citation Nr: 1315215 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 06-14 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a compensable disability rating for service-connected lipoma. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to September 1980, from December 1980 to December 1984, and from July 2003 to October 2005. He also had duty in the Air Force Reserves. This matter comes before the Board of Veterans' Appeal (Board) from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied a compensable disability rating for lipoma. In a September 2012, the Board most remanded this issue for further development, which was accomplished in February 2013. See the Veteran's Virtual VA e-folder. FINDING OF FACT The Veteran's service-connected lipoma measuring 2 centimeters round more nearly approximates than not the criteria of painful scar. CONCLUSION OF LAW The criteria for a compensable rating of 10 percent for lipoma are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7806 (2001 and 2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant with notice in July 2003 and May 2010, therefore, complete notice was not given until subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a February 2013 supplemental statement of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board remanded this claim in March 2010 to obtain additional STRs, post-service treatment residuals, SSA records, and an examination; which were obtained an associated with the Veteran's claims file. As noted above, the decision September 2012 remand requested the issuance of an SSOC which was accomplished in February 2013 and associated with the Veteran's Virtual VA e-folder. The Board therefore is satisfied there was compliance with these remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service-connected scars are generally evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Code 7800 to 7806. The Board notes that the criteria for evaluating skin disabilities were revised in August 2002 and October 2008, during the period that is the focus of this appeal. Where a law or regulation changes after a claim is filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant must apply unless Congress or the Secretary provides otherwise. Further, in a precedent opinion of the VA Office of the General Counsel, it was held that, when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, the Board must determine whether the intervening change is more favorable to the veteran, and, if the amendment is more favorable, apply that provision to rate the disability for periods from and after the effective date of the regulatory change. In addition, the Board must apply the prior regulation to rate the veteran's disability for periods preceding the effective date of the regulatory change. VAOPGCPREC 3-2000 (April 10, 2000). However, the 2008 revisions were expressly made applicable only to claims filed on or after on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008), codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805. Because the Veteran's claim was received in 2003, the 2008 revisions do not apply to his case. See also 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114. In this case, the record reflects the Veteran was assigned a 0 percent rating for his lipoma, pursuant to Diagnostic Code 7819. Benign skin neoplasms, which are rated under the provisions of Diagnostic Codes 7800-7805. As pertinent here, Diagnostic Code 7804 is based upon a painful scar. Prior to August 30, 2002, Diagnostic Code 7804 provided that a 10 percent disability rating was assigned for a tender and painful superficial scar. The Board notes that the 2002 revisions to this Code are not substantive as much as they are clarifying. Specifically, Diagnostic Code 7804 is still for painful superficial scars. A Note following Diagnostic Code 7804 clarifies that a superficial scar is one that is not associated with underlying soft tissue damage. Further, the Veteran is competent to describe symptoms of pain, and nothing in the record questions his credibility on this matter. Therefore, the Board finds that he is entitled to a 10 percent rating for lipoma. Reasonable doubt has been resolved in his favor. See 38 C.F.R. §§ 4.3, 4.7. The Board notes that, both prior to and from August 30, 2002, Diagnostic Code 7804 provides a maximum rating of 10 percent, as do the other potentially applicable Diagnostic Codes 7802 to 7803. Moreover, the Veteran's lipoma does not affect the head, face, or neck so as to warrant consideration of Diagnostic Code 7800 (as it existed both prior to and from August 30, 2002). Further, it is not manifested by dermatitis or eczema so as to warrant consideration of Diagnostic Code 7806 (as it existed both prior to and from August 30, 2002). The Board notes that Diagnostic Codes 7801 and 7802, as in effect prior to August 30, 2002, was applicable only to burn scars. However, effective August 30, 2002, these Codes were revised to eliminate this requirement. Nevertheless, as the Veteran's service-connected lipoma scar is not a burn scar, the provisions of Diagnostic Code 7801 and 7802 as they existed prior to August 30, 2002, are not for consideration in this case. Effective August 30, 2002, Diagnostic Code 7801 provided that scars, other than of the head, face or neck, that are deep or that cause limited motion warrant a 10 percent rating when the scars cover an area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is warranted when the area or areas exceed 12 square inches (77 sq. cm.). A 30 percent rating requires an area or areas exceeding 72 square inches (465 sq. cm.), while a 40 percent rating requires an area or areas exceeding 144 square inches (929 sq. cm.). In this case, nothing in the record reflects the Veteran's lipoma scar is deep. Moreover, there is no indication the lipoma scar measured an area or areas that exceeded 12 square inches (77 sq. cm.). For example, the February 2004 fee basis examination found hyperpigmentation and abnormal texture. However, there was no ulceration, exfoliation, crusting, tissue loss, induration, inflexibility, hypopigmentation, and limitation of motion. There was a 2 centimeters by 2 centimeters scar and swelling of 2 centimeters by 1 centimeter. The scar covered 0.01 percent of the Veteran's exposed area, and 0.001 percent of the Veteran's total body area. A VA skin examination was conducted in October 2010. Localized tenderness was noted. The October 2010 examiner opined that the service-connected scar was unrelated to the Veteran's melanoma. When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected condition, VA regulations dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether a particular symptom is related to his service-connected scar as opposed to the residuals of melanoma falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). More significantly, the record as a whole does not reflect that the lipoma has resulted in limitation of motion or any function, or any symptomatology besides tenderness or pain. In view of the foregoing, the Board finds that the provisions of Diagnostic Code 7801 effective from August 30, 2002, are not applicable to this case. The Board also notes that Diagnostic Code 7805, both prior and subsequent to August 30, 2002, evaluated scars based upon limitation of motion of the part affected. For the reasons detailed above, the Board has found that the service-connected lipoma scar has not resulted in limitation of motion. Therefore, this Code is not applicable in the instant case either. For these reasons, the Board finds that the Veteran is entitled to a schedular rating of no more than 10 percent for his service-connected lipoma scar. The Board also wishes to note that, even if it applied the 2008 revised rating criteria for the Veteran's service-connected lipoma scar, it does not appear it would have resulted in a higher rating in this case. In pertinent part, these revisions made no changes to the requirement of Diagnostic Code 7800 that the scars affect the head, face, or neck. Diagnostic Code 7801 applies to scars that are deep and nonlinear, and the lipoma scar is not deep. Further, a rating in excess of 10 percent still requires the scar to measure an area or areas of at least 12 square inches (77 sq. cm.), and the Board has already determined such is not the case. The 2008 revisions eliminated Diagnostic Code 7803. The revision did provide for ratings in excess of 10 percent under Diagnostic Code 7804, but only if there were at least 3 or more unstable or painful scars. In this case, the Veteran has only the one, single scar. Diagnostic Code 7805 was revised to provide that any disabling effect(s) not considered under Diagnostic Code 7800 to 7804 be evaluated under an appropriate Diagnostic Code. However, no functional impairment of the left hand scar appears to be applicable in this case other than the Veteran's complaints of occasional pain, which is contemplated by the current 10 percent rating under Diagnostic Code 7804. Finally, Diagnostic Code 7806 is still for evaluation of dermatitis or eczema, which is not present in this case. Other Considerations In evaluating the Veteran's service-connected lipoma scar, the Board considered the applicability of "staged" rating(s) pursuant to Hart, supra. However, the record does not reflect the Veteran met or nearly approximated the criteria for ratings in excess of 10 percent for either disability during the pendency of this case; i.e., there were no distinctive period(s) where higher rating(s) were warranted. Therefore, no further consideration of "staged" ratings is warranted in this case. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability in that his service-connected lipoma scar is manifested by no more than a painful scar. As detailed above, such a manifestation is contemplated in the rating criteria. No exceptional or unusual disability picture is demonstrated by either disability. The rating criteria are therefore adequate to evaluate the service-connected disability and referral for consideration of extraschedular rating is not warranted. ORDER A rating of 10 percent for service-connected lipoma is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs