Citation Nr: 1317528	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  09-15 855	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania



THE ISSUES

1.  Entitlement to service connection for right ankle arthritis, to include as secondary to service-connected right ankle fracture residuals.

2.  Entitlement to an initial rating in excess of 10 percent for right ankle fracture residuals with retained hardware, to include a separate compensable rating for residual scarring. 



ATTORNEY FOR THE BOARD

P. Olson, Counsel



INTRODUCTION

The Veteran served on active duty from June 1996 to August 2007.

This matter is before the Board of Veterans' Appeals (Board) following Board Remands in November 2011 and December 2012.  This matter was originally on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Pittsburgh, Pennsylvania.  Other issues have been resolved in prior decisions.  These issues are the sole issues remaining on appeal.


FINDINGS OF FACT

1.  The competent evidence does not demonstrate that the Veteran is currently diagnosed with arthritis of the right ankle.  As such, there is no separate arthritis disability related to service connected impairment of the ankle.

2.  The Veteran's service-connected residuals of right ankle fracture with retained hardware are manifested by marked limited motion of the ankle and a painful scar but not by ankylosis or other limitation of function due scarring.


CONCLUSIONS OF LAW

1.  The Veteran does not have a diagnosis of right ankle arthritis that was incurred in or aggravated by active service or is proximately due to, the result of, or aggravated by a service connected disorder.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012).

2.  With resolution of reasonable doubt in the Veteran's favor, the criteria for an evaluation of 20 percent, but no higher, for residuals of right ankle fracture with retained hardware have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2012). 

3.  With resolution of reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent evaluations, but no higher, for painful surgical scar have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.118 Diagnostic Code 7804 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matter

Pursuant to the Board's November 2011 and December 2012 Remands, the Appeals Management Center (AMC) scheduled the Veteran for VA examination to determine the current severity of his service-connected right ankle disability and to determine whether there was x-ray evidence of right ankle arthritis; readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below; and issued a Supplemental Statement of the Case.  Based on the foregoing actions, the Board finds that there has been compliance with the Board's November 2011 and December 2012 Remands.  Stegall v. West, 11 Vet. App. 268 (1998).

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant 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.  

With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to increased rating claims, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009). 

In this case, the Board notes that the increased rating issue on appeal arises from a notice of disagreement as to the initial rating assigned to the Veteran's right ankle fracture residuals with retained hardware, and as such, represents a "downstream" issue as referenced in VAOPGCPREC 8-2003 (December 22, 2003), summary published at 69 Fed. Reg. 25,180 (May 5, 2004), a precedent opinion of VA's General Counsel that is binding on the Board (see 38 U.S.C.A. 7104(c); 38 C.F.R. § 14.507).  The opinion states that if, in response to notice of its decision on a claim for which VA has already given the 38 U.S.C.A. § 5103(a) notice, VA receives a notice of disagreement that raises a new issue, 38 U.S.C.A. § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly-raised issue.  

With regard to the instant case, the Board finds that adequate 38 U.S.C.A. § 5103(a) notice was provided as to the original claim for service connection in November 2007, and as such, the rating assignment issue on appeal falls within the exception for the applicability of 38 U.S.C.A. § 5103(a).  Nonetheless, in February 2009, the Veteran was advised how VA determines disability ratings and specifically advised the veteran that he should tell VA about or give to VA that may affect how VA assigns a disability evaluation included statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. 
  
With respect to the issue of entitlement to service connection for right ankle arthritis, VA has met all statutory and regulatory notice and duty to assist provisions.  The November 2007 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473.  Together, the letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates.  

The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was done in this case.

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The Veteran was accorded VA examinations in April 2008 and February 2013.  38 C.F.R. § 3.159(c)(4).  Both VA examiners addressed the severity of the right ankle disability as well as the existence of right ankle arthritis in conjunction with physical examination of and interview with the Veteran.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.  The VA examination reports are thorough; thus these examinations are adequate upon which to base a decision. 

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See 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 not demonstrated any prejudice with regard to the content of the notice.  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.) 

Service Connection

In November 2007, the Veteran filed a claim of entitlement to service connection for "osteoarthritis of the right ankle." 

To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

Lay statements may serve to support a claim of a claim of entitlement to service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons.  38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336   (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Here, although the Veteran is competent to provide statements regarding right ankle pain, he is not competent to diagnose arthritis.  Indeed, 38 C.F.R. § 4.71a , Diagnostic Code 5003, which addresses degenerative arthritis, notes that such a diagnosis must be supported by x-ray evidence. 

Although the Veteran's service medical records include osteoarthritis ankle/foot (multiple joints) in computer-generated problems and past diagnosis history of osteoarthritis right ankle, these records are absent x-ray findings of right ankle arthritis.  An X-ray in March 1999 showed fracture of the distal fibula with disruption of the syndesmosis and medial subluxation of the distal fibula.  

Post operative x-rays in March showed two internal orthopedic fixation screws across the oblique fracture of the distal fibular metaphysic.  The fracture margins were well aligned for healing.  An X-ray in May 1999 showed screw fixation of the fibula.  There is disuse osteoporosis with fracture evidence on the lateral view involving the posterior tibia.  Ankle mortise appeared intact.  There was soft tissue swelling.  X-ray in July 1999 showed two internal fixation screws of the distal fibula with good interval healing of the distal fibular fracture.  Ankle mortise appeared intact and well maintained.  There was no acute fracture of dislocation.  X-rays in November 1999 showed orthopedic screws in the fibula.  The ankle mortise was intact.  The bones were well mineralized and developed.  There was no fracture or dislocation.  Impression was surgical change.  Healed fracture of the right ankle.  X-ray in April 2000 showed orthopedic screws in the fibula.  The ankle mortise was intact.  There was no fracture or dislocation.  X-ray in January 2001 showed evidence of healing of previous fractured distal fibula with two fixating screws which unchanged in position.  There was slight narrowing of lateral aspect of ankle joint space which was believed to be due to slightly difference in positioning otherwise ankle mortise was intact.  There was no separation or widening of ankle mortise on stress view.  

X-ray in May 2004 showed two screws in the distal fibula status post "ORIF" of a distal fibular fracture.  The fracture was well healed and was no longer clearly in evidence.  No acute fracture or dislocation was identified.  There were osseous fragments adjacent to the posterior aspect of the base of the cuboid, which were best appreciated on the later view.  It was noted that the fragments were not well corticated and could represent avulsion fractures of indeterminate age.  No other abnormality was indentified.  Impression was loose bodies adjacent to the cuboid of uncertain significance; question possible anatomic variant versus avulsion of indeterminate age.

A January 2001 Medical Board Report noted that x-rays of the right ankle in January 2001 showed no evidence of any degenerative joint disease about the right ankle.

Further, the record is also absent x-ray findings of right ankle arthritis in the post-service records.  X-ray in April 2008 showed two internal fixation screws in the distal fibula.  The bony alignment was anatomic.  No fracture lucency was identified.  The mortise was well-maintained.  Minimal well-corticated irregularity was visualized in the anterior aspect of the tibia likely representing old post-traumatic change.  The remainder of the examination was unremarkable.  

The Veteran underwent VA examination in February 2013.  X-rays demonstrated fracture residuals and retained hardware but there were no degenerative changes of the ankle joint seen.   

Thus, the medical evidence fails to show x-ray evidence of right ankle arthritis.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  In the absence of competent medical evidence of right ankle arthritis that was caused by or aggravated by the Veteran's military service, the criteria for establishing service connection for right ankle arthritis have not been established.  38 C.F.R. § 3.303.  Similarly, in the absence of arthritis, there is no basis for further consideration of secondary service connection.  38 C.F.R. § 3.310.

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Increased Rating

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 diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 

The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for residuals of right ankle fracture with retained hardware.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  Review of the appeal has been undertaken mindful of this guidance.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 

Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion.  Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example.  38 C.F.R. § 4.40. 

The provisions of 38 C.F.R. §§ 4.45  and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations.  The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 

The Veteran's service-connected right ankle disability has been rated as 10 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostics Code 5271 (2012).  Under this code, moderate limited motion of the ankle warrants a 10 percent rating, and marked limited motion of the ankle warrants a 20 percent rating.  38 C.F.R. § 4.71a.  Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion.  38 C.F.R. § 4.71, Plate II.
   
A May 2008 Physical Therapy record notes right ankle range of motion -3 degrees dorsiflexion, 50 degrees plantar flexion, 20 degrees inversion, and 6 degrees eversion.  

At the February 2013 VA examination, plantar flexion was to 30 degrees with pain dorsiflexion was 10 degrees with pain.  The Veteran was able to perform repetitive use testing with three repetitions with no change in plantar flexion or dorsiflexion.  In fact, the examiner noted that the Veteran did not have additional limitation in range of motion of the ankle following repetitive-use testing.  There was evidence of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  There was also localized tenderness on palpation of the right ankle joint.  Muscle strength testing was normal, and there was no laxity or ankylosis.

Given the evidence of record, the Board finds the Veteran's overall disability picture to be more accurately contemplated by a 20 percent disability rating under Diagnostic Code 5271.  38 C.F.R. §§ 4.40, 4.45, 4.71a.  The Veteran has lost half of his motion on dorsiflexion and 15 degrees of his motion on plantar flexion.  Therefore, resolving all doubt in the Veteran's favor, the Veteran's service-connected right ankle disability more closely approximates marked limitation of motion and thus a rating of 20 percent is warranted.  This rating contemplates the painful motion and other findings identified, and contemplates the functional loss shown.

The Board finds, however, that the record does not warrant assignment of a disability rating in excess of 20 percent at any time during the rating period on appeal.  The evidence does not demonstrate that the Veteran has ankylosis of his right ankle to warrant a 30 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5270. 

Consideration has also been given to whether an increased rating is warranted on the basis of functional impairment and pain.  38 C.F.R. §§ 4.10 , 4.40, 4.45, 4.59 (2012); DeLuca 8 Vet. App. at 204-06.  The Board acknowledges the Veteran's complaints of pain and swelling after prolonged standing or walking.  However, there is no objective clinical indication that the Veteran has right ankle symptoms causing functional limitation to a degree that would support an evaluation in excess of 20 percent. 

While a higher rating was not available based on the orthopedic manifestations of the Veteran's right ankle disability, a rating must also be considered for the right ankle surgical scar.   

During the pendency of this appeal for an increased rating, the applicable rating criteria for skin disorders, including residual scarring, 38 C.F.R. § 4.118, were amended.  Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria.  These regulations were revised effective October 23, 2008.  However, the revisions are applicable to applications for benefits received by VA on or after October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008).

The Federal Register's paragraph addressing the applicability date of the new regulation specifically states:

This amendment shall apply to all applications for benefits received by VA on or after October 23, 2008.  A Veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review.  The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates, 38 CFR 3.400, etc.

In the present case, the Veteran's application for service connection was received in November 2007, before the October 2008 effective date of the amendment.  In such circumstances, only the previous criteria applies as discussed above in the Federal Register as the Veteran has not requested review under the new criteria.  

Pursuant to the criteria in effect prior to October 23, 2008, scars, other than of the head, face, or neck, are to be rated under Diagnostic Codes 7801 to 7805. 

Under Diagnostic Code 7801, which governs scars, other than the head, face, or neck, that is deep or cause limited motion, a 10 percent evaluation is assignable when the area or areas exceed six square inches (39 square centimeters).  A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 square centimeters).  38 C.F.R. § 4.118, Diagnostic Code 7801.  

Under Diagnostic Code 7802, which governs scars other than the head, face, or neck, that are superficial and do not cause limited motion, a 10 percent evaluation is assignable for area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802.  

Under Diagnostic Code 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable.  38 C.F.R. § 4.118, Diagnostic Code 7803.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7803, Note (1), (2). 

Under Diagnostic Code 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804.  A superficial scar is one not associated with underlying soft tissue damage.  

Under Diagnostic Code 7805, other types of scars will be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7804. 

At the February 2013 VA examination, the Veteran's right ankle surgical scar was painful.  The examiner noted painful scar with underlying screw heads and that there was pain with pressure on scar.  Based upon the evidence of record, the Board concludes that the residual scarring from the Veteran's right ankle surgery warrants a separate 10 percent evaluation.  An evaluation in excess of 10 percent, however, is not warranted as the Veteran's right ankle scar has not been determined to be deep or cause limited function.

In summary, and for the reasons and bases set forth above, the Board finds that the evidence supports an evaluation of 20 percent, but no higher, for the Veteran's service-connected residuals of right ankle fracture with retained hardware and a separate 10 percent evaluation for painful scar.  

The Board is aware that an extraschedular rating is a component of an increased rating claim.  Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1) (2008).  In the present case, the Board finds no evidence that the Veteran's service-connected right ankle disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1).  

The criteria pertaining to ankle disabilities in the Rating Schedule focus on limited motion due to pain.  As discussed above, such symptomatology describes the Veteran's current disability picture.  Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted.  Id. 

The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation.  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability.  In the present case, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU.


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ORDER

Entitlement to service connection for right ankle arthritis, to include as secondary to service-connected right ankle fracture residuals, is denied.

Entitlement to an initial rating of 20 percent, but no higher, for right ankle fracture residuals with retained hardware is granted subject to the law and regulations governing the payment of monetary benefits.

Entitlement to a separate 10 percent evaluation, but no higher, for a painful scar is granted subject to the law and regulations governing the payment of monetary benefits.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs