Citation Nr: 1317664 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-21 561A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for disability manifested by blurred vision, white spots, dizziness, and watering eyes. 2. Entitlement to a disability rating greater than 30 percent for disfiguring scars of the head, face, or neck. 3. Entitlement to a disability rating greater than 10 percent for painful scars of the head, face, or neck. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1988 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and September 2006 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In July 2008, the Veteran testified at a hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board in April 2009 and July 2011, at which time it was remanded for additional development. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders with regard to the issues being adjudicated herein, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially met), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). When this case was previously before the Board, the Veteran's service-connected scars were separately rated as 10 percent disabling for a left craniotomy scar, a right craniotomy scar, a scar on the bridge of the nose, and a scar along the scalp line. The issues on appeal as captioned above have been changed to reflect the actions taken by the Appeals Management Center (AMC) while the case was in a remand status. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. (The issue of service connection for disability manifested by blurred vision, white spots, dizziness, and watering eyes is addressed in the remand that follows the decision below.) FINDINGS OF FACT 1. The Veteran's service-connected scars of the head and face result in four characteristics of disfigurement. 2. The Veteran has two painful scars of the head and face. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating for disfigurement caused by the service-connected scars of the head and face have been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7800 (as in effect prior to and since October 23, 2008). 2. The criteria for a separate disability rating greater than 10 percent for painful scars of the head and face have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (as in effect prior to and since October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in March 2005, January 2006, March 2006, May 2006, April 2008, June 2009, July 2011, and August 2011 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For initial disability ratings that arise from a grant of service connection, notice that was provided before service connection was granted is legally sufficient, and VA's duty to notify the Veteran in such cases is satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). For compensation claims that do not arise from the initial grant of service connection, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above-mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. The VCAA also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. The Board further observes that this case was remanded in April 2009 and July 2011 in order to obtain outstanding treatment records and afford the Veteran a VA examination. Thereafter, efforts to obtain additional treatment records were undertaken, and the Veteran was afforded additional VA examinations. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the January 2010 remand directives such that no further action is necessary with regard to the issues decided herein. See D'Aries, supra. In sum, the Board finds that the duty-to-assist and duty-to-notify provisions of the VCAA have been met, and no further action is necessary under the mandates of the VCAA. Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited different symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). As noted above, the Veteran's service-connected scars were previously separately rated for a left craniotomy scar, a right craniotomy scar, a scar on the bridge of the nose, and a scar along the scalp line. In a rating action dated in February 2013, the AMC re-characterized the issues as a disability rating greater than 30 percent for disfiguring scars of the head, face, or neck ("T" shaped scalp, bridge of nose, lateral right eyelid, bony defects in frontal skull); and a disability rating greater than 10 percent for painful scars associated with scars of the head, face, or neck ("T" shaped scalp, bridge of nose, lateral right eyelid, bony defects in frontal skull). This allowed the Veteran's scars to be rated in a manner that provided him with the maximum benefit allowed in keeping with the provisions of 38 C.F.R. § 4.118, which provides the rating criteria for disorders of the skin. The Veteran's service-connected scars have been rated by the AOJ under both previous and current versions of 38 C.F.R. § 4.118 Diagnostic Codes 7800 and 7804. The criteria of rating scars found under § 4.118 changed effective October 23, 2008. 73 Fed. Reg. 54,710 (October 23, 2008). The Veteran's claim was submitted in January 2005. The amendments are only effective, however, for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran submitted his current claim in January 2005, however, it does not appear that he requested such consideration. Nevertheless, as the AOJ has already considered the Veteran's disability under both the prior and amended regulations, the Board will similarly evaluate the claim. Prior to October 23, 2008, the criteria for rating disfigurement of the head, face, or neck were set forth in 38 C.F.R. § 4.118, Diagnostic Code 7800. Under these rating criteria, one characteristic of disfigurement results in a 10 percent disability rating. Evidence that disfigurement of the head, face, or neck has resulted in visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement warrants a 30 percent disability rating. The next higher 50 percent disability rating requires evidence of visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or with four or five characteristics of disfigurement. The maximum 80 percent disability rating requires evidence of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (effective August 30, 2002). The eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are: a scar of five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (.6 centimeters) wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo-, or hyper-, pigmented in an area exceeding six square inches (39 square centimeters); abnormal skin texture (which is also irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); indurated and inflexible skin in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, Note 1 following Diagnostic Code 7800 (effective August 30, 2002). Unretouched color photographs are to be taken into consideration when evaluating these criteria. 38 C.F.R. § 4.118, Note 3 following Diagnostic Code 7800 (effective August 30, 2002). The regulation as amended on October 23, 2008, mirrors that in effect prior to that date, with the exception of two additional Notes following the rating criteria. Note (4) directs to separately evaluate disabling effects other than disfigurement that are associated with an individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 4 (2012). Note (5) clarifies that the characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 5 (2012). Prior to October 23, 2008, the criteria for rating painful scars provided a regulatory maximum of 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective August 30, 2002). Effective October 23, 2008, the criteria for rating painful scars provided a 10 percent disability rating for one or two scars that are unstable or painful; a 20 percent disability rating for three or four scars that are unstable or painful; and, a 30 percent disability rating for five or more scars that are unstable or painful. 38 C.F.R. § 4.118 Diagnostic Code 7804 (2012). The revised criteria also provide that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1) (2012). In January 2005, the Veteran submitted his claim to have the scars related to his head injury in service, as well as those due to surgeries in 2000, rated as service-connected disabilities. Records from Carolinas Healthcare, received in March 2005, show that an April 2000 operative report noted that a "gentle L-shaped incision" was marked and incised on the left frontal region. Two operative reports for June 16, 2000, show a bifrontal craniotomy with frontal fossa exposure and autologous pericranial dural patch grafting; and that the same incision line had been used from the earlier surgery (April 2000) for part of a coronal incision. A VA examination report dated in March 2005 shows that the Veteran's had a one-inch size frontal depression in the forehead. It was also noted that there was a craniotomy scar that extended from the top of the left ear to the top of the right ear. No further information or assessment was provided. A VA neurology examination report dated in July 2005 shows that the examiner commented that the Veteran had a well healed circular scar that extended from ear to ear across the skull. There was no unusual tenderness of the scar noted. A VA scars examination report dated in July 2005 shows that three scars were evaluated and photographs were included in the report. One was across the top of the Veteran's head, one at the bridge of his nose, and the third at the scalp line of the forehead. The scar on the top of the head, from his craniotomy, measured as 0.3 centimeters wide and 28 centimeters long. (For purposes of this decision, the Board will refer to this scar as Scar 1.) There was tenderness on palpation. There was no elevation, inflammation, ulceration or skin breakdown, keloid formation, depression, adherence to underlying tissue, induration or inflexibility, or underlying tissue loss. Skin color was normal, and the scar was considered to be disfiguring. The second scar was said to be across the bridge of the nose, between the eyes, and onto the eyelid of the left eye. (For purposes of this decision, the Board will refer to this scar as Scar 2.) The scar was said to be 0.1 centimeters in width and 3 centimeters long. There was no tenderness on palpation, inflammation, elevation, skin ulceration or breakdown, keloid formation, adherence to underlying tissue, induration or inflexibility, or underlying tissue loss. There was a depression of the scar with normal skin texture. The scar was also said to be disfiguring. The third scar was at the top of the forehead at the scalp line. (For purposes of this decision, the Board will refer to this scar as Scar 3.) The examiner said it was the result of a bone biopsy procedure. The scar was measured as 2.5 centimeters wide and 5 centimeters long. There was no tenderness on palpation, inflammation, elevation, skin ulceration or breakdown, keloid formation, depression, adherence to underlying tissue, or induration or inflexibility. The skin texture and color were normal. The examiner noted underlying tissue loss as represented by the dimensions of the scar, but did not provide the dimensions of such loss. A VA scars examination report dated in May 2007 shows that three scars were evaluated. However, these included Scar 1, Scar 2, and a scar not previously evaluated, which the Board will refer to as Scar 4. Scar 1 was noted to measure 0.3 centimeters wide by 28 centimeters long, running ear to ear across the top of the skull. The scar was tender to palpation. There was no adherence to underlying tissue, underlying tissue damage, skin ulceration or breakdown over the scar, elevation or depression, or induration or inflexibility. Color was as the normal color of the skin, and texture was normal. Scar 2 was said to be 0.1 centimeters wide and 7 centimeters long. It was tender to palpation. There was no adherence to underlying tissue, underlying tissue damage, skin ulceration or breakdown over the scar, elevation or depression, or induration or inflexibility. Color was as the normal color of the skin, and texture was normal. Scar 4, located horizontally on the occipital scalp, measured at 0.2 centimeters wide and 9 centimeter long. The scar was tender to palpation. Further, there was no adherence to underlying tissue, underlying tissue damage, skin ulceration or breakdown over the scar, elevation or depression, or induration or inflexibility. Color was as the normal color of the skin, and texture was normal. A VA scars examination report dated in December 2009, and an addendum dated in September 2010, show that four of the Veteran's scars were evaluated. The examiner indicated that if he pressed hard on the two areas of scars from his craniotomy, there was some pain and tenderness. A soft touch did not cause any discomfort in the same areas. The Veteran had a symmetrical appearing face with a depression in the mid-center of the head where incisions met from the forehead with the ear-to-ear incisional scars. The examiner said that all scars were well healed without any keloid or adherence and were tender only in described areas. He said that, even with bright light, the scars were difficult to visualize with hair on the scalp. Scar 1 was said to extended from the top of the right ear and over the head to the top of the left ear. It was said to be 11 inches long and 1/8 inch wide. Scar 2 was said to be a 1 inch long by 1/8 inch wide horizontal scar that started on the top of the bridge of the nose and traveled to just above the left upper eyelid. Scar 3 was 4 inches long by 1/8 inch wide at the front hairline. There was approximately a 1 inch by 1 inch slight depression in the middle of the forehead without a scar. Scar 4 was a 3 inch x 1/8 inch vertical scar from the middle of the top of the head that met the 11 inch scar in the middle. A VA scars examination report dated in September 2011 shows that five scars were evaluated, to include one not previously identified, which the Board will refer to as Scar 5. Scar 1 was said to run across the top of the head from ear to ear measuring 0.3 centimeters wide by 25 centimeters in length. Scar 2 was said to be a traumatic scar across the bridge of the nose that runs from eye to eye approximately 0.1 centimeter wide by 3 centimeters in length. It was flat, skin colored, and almost invisible. There was a minimal amount of disfigurement--to the point where the Veteran had to physically show the examiner where the scar started and where it ended. It was said to cover less than one percent of the exposed body surface area and appeared to be well healed with no signs of symptoms of infection. Scar 3 was a 2.5 centimeter wide by 4.5 to 5 centimeter long depressed area in the forehead above the eyebrow and below the scalp hairline. The depressed area was approximately 0.3 centimeters depressed from the surface. It was firm to touch. There was no underlying soft tissue attachment to the depression, and there was disfigurement of the forehead with an obvious depression on visual inspection of the face. Scar 4 was a surgical scar starting at the craniotomy scar in the top of the head in the center measuring 8 centimeters to the front of the scalp ending at the hairline. The surgical scar measured 0.2 centimeters wide and appeared to be well healed, non-raised, nontender to palpation, and with no underlying skin attached. The surgical lesion was straight. It was slightly raised and appeared to be well healed. There was disfigurement with areas of alopecia throughout the scar from ear to ear. It covered less than one percent of exposed body surface area. Scar 5 was identified as a 0.2 centimeter wide by 0.7 centimeter long flat linear scar on the right lateral face, approximately 2 centimeters from the eye. This small linear laceration was skin colored, flat, not raised. It covered less than one percent of the exposed body surface area and had minimal disfigurement. There were no other scars visible on the face or head, and the Veteran reported no other surgical scars. There appeared to be no other scars related to the year 2000, and there appeared to be no other traumatic scars related to the March 25, 1992, motor vehicle accident. A VA scars examination report dated in October 2012 shows that the Veteran was said to have scars and bony skull defects due to bone grafts. The Veteran was said to have disfigurement. The examiner indicated that the Veteran had two painful scars, but no unstable scars. None had elevation or adherence to underlying tissue. None of the scars resulted in limitation of function or secondary complications. None of the scars impacted the Veteran's ability to work. Unretouched photographs were included. Scar 1 (described as a "T" shaped scalp surgical incision in sagital and coronal planes) measured 0.3 centimeters wide and 34 centimeters long. This scar was said to be hypopigmented in an approximate 10.2 square centimeter area. Scar 2 measured 0.1 centimeters wide and 3 centimeters long. Scar 3 (described as a bony defect in the frontal skull) was said to measure 5 centimeters wide and 6 centimeters long. Surface contour was depressed on palpation. There was said to be distortion of the forehead area. Scar 5 was said to measure 0.2 centimeters wide and 0.7 centimeters long. In applying the regulatory criteria of 38 C.F.R. § 4.118 to the Veteran's claim, the Board finds that, as evaluated by the RO in February 2013, the Veteran's disfigurement will be rated separately from disabling effects of the scars other than disfigurement. In considering disfigurement, the Veteran's multiple scars of the head and face will be considered. In applying the criteria of Diagnostic Code 7800 to the medical evidence of record, the Board finds that the various scars have been variously described over the course of this appeal. Nevertheless, the Board will apply the total characteristics of disfigurement so as to provide the Veteran with the most favorable outcome. As such, the medical evidence of record as set forth above has shown that the Veteran's scars have exhibited four characteristics of disfigurement over the course of this appeal. The Veteran has had a scar of five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (.6 centimeters) wide at the widest part; surface contour of a scar that was depressed on palpation; and a scar that was described as having some abnormal texture. As four characteristics of disfigurement have been demonstrated, under Diagnostic Code 7800, a 50 percent disability rating is warranted. The Board notes that in October 2012, Scar 1 was said to have been hypopigmented, however, the area in question was only said to cover 10.2 square centimeters and not 39 square centimeters are required to be considered a disfiguring characteristic. Similarly, in July 2005, Scar 3 was said to have some underlying tissue loss, but dimensions of such loss were not provided. Subsequent examinations of Scar 3 did not reveal any underlying tissue loss; as such, this will not be considered a disfiguring characteristic. The Board finds that the maximum 80 percent disability rating under Diagnostic Code 7800 is not warranted for disfigurement as the evidence has not shown visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or six or more characteristics of disfigurement. As such, the Board finds that the Veteran's scars collectively warrant a 50 percent disability rating for disfigurement under Diagnostic Code 7800. Additionally, certain scars have also resulted in disabling effects other than disfigurement. In this regard, the VA examination report dated in October 2012 specifically set forth that there were two painful scars. While some of the prior examination reports had noted that some of the scars were tender on palpation, there is no medical evidence of record to suggest that any were painful, and no records show that more than two scars were painful over the course of this appeal. Moreover, there is no evidence of record that any of the scars were unstable. As such, under Diagnostic Code 7804 a separate 10 percent disability rating is warranted as there are two scars that are painful. A separate disability rating greater than 10 percent is not warranted under Diagnostic Code 7804 as the evidence has not established that there are three or more scars that are painful or unstable. The Board has considered the potential applicability of additional diagnostic code provisions in assessing the Veteran's disability. In this regard, Diagnostic Code 7801 is for application for scars other than the head, face, or neck. As such, it would not be appropriate to rate under this code provision. Diagnostic Code 7805 relates to disabling effects of scars not considered under the diagnostic codes described elsewhere in this decision and directs that they be evaluated under an appropriate diagnostic code. As there are no disabling effects other than as described above, this diagnostic code provision is not applicable. The Board has considered whether a staged rating is appropriate in this case, however, the symptoms associated with the Veteran's scars have remained relatively consistent throughout the course of the claim period and, as such, staged ratings are not warranted. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for a higher rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. In conclusion, the Board finds that the evidence supports a 50 percent disability rating for disfigurement resulting from the Veteran's multiple head and face scars, and a separate 10 percent disability rating for two painful head and face scars. Extra-schedular Consideration Finally, the Board finds that the Veteran's scar disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claims for extra-schedular consideration. The level of severity of the Veteran's scars is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, as a result of this decision, the disfigurement resulting from the Veteran's head and face scars has been awarded an increased disability rating of 50 percent. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claims will not be referred for extra-schedular consideration. ORDER A 50 percent disability rating for disfigurement caused by the service-connected scars of the head and face is granted, subject to the applicable criteria governing the payment of monetary benefits. A disability rating greater than 10 percent for pain associated with scars of the head and face is denied. REMAND The Veteran asserts that he has experienced drainage from his eyes since service. This is noted in his service treatment records in the period immediately after an in-service March 1992 motor vehicle accident. He continued to report such drainage when seeking private treatment as well as at his several VA examinations. He submitted a lay statement from his spouse wherein she expressed observations of his condition as well as noting his continued statements of experiencing drainage from his eye. A VA eye examination report dated in June 2006 shows that the Veteran's flashers and floaters were within normal limits and not a pathological phenomenon. The examiner added that the tearing was within normal limits and not due to any ocular pathology. The examiner stated that the Veteran did not have any dry eye or any lacrimal gland dysfunction by examination or history. As noted in the July 2011 Board remand, a September 2009 VA examination report was deemed inadequate because the examiner failed to provide an opinion regarding the one diagnosis provided, and a November 2010 addendum failed to provide an explanation or rationale for a conclusion that the diagnosed conjunctivitis was not related to the Veteran's military service. The July 2011 Board remand also pointed out that the Veteran had been afforded a subsequent VA examination in January 2011, however, it had not yet been addressed by the agency of original jurisdiction. Additionally, the Board noted that the Veteran had submitted records from Advanced Eyelid Surgery & Laser Center (AESLC) that provided diagnoses of two eye-related disorders--bilateral epiphora, decreased drain and nasolacrimal duct stenosis (NLD). The Board noted that epiphora was defined as "an overflow of tears on the cheek, due to imperfect drainage by the tear-conducting passages." STEDMAN'S MEDICAL DICTIONARY 657 (28th Ed., 2006). The above diagnoses were provided in a report from AESLC dated in November 2010. The report said it was possible the Veteran's epiphora and NLD stenosis were related to his injuries from the MVA, particularly the nasal fractures. The Veteran submitted additional records from AESLC that reflect that he had surgery to attempt to treat his problem. The second report was dated in March 2011 and reflected that the surgery took place in February 2011. It was noted that the Veteran said his eyes were still watering about the same as before his surgery. The only diagnosis provided by VA examination, to date, was conjunctivitis. The September 2010 addendum stated that the conjunctivitis was not related to the Veteran's service but no explanation or rationale was provided. Although the January 2011 VA examination had not yet been reviewed by the agency of original jurisdiction, that report also found no diagnosis other than minor refractive error. The report dismissed the Veteran's complaints of watering eyes as not related to any underlying pathology. Nevertheless, in light of the diagnosis provided by the November 2010 AESLC evaluation, the Board determined that a new examination was required that provided a comprehensive review of the Veteran's complaints and an opinion as to the existence of any identifiable eye disability. In its remand instructions, the Board directed that the requested examinations be conducted by appropriate specialists. A VA eye examination was conducted in August 2011 at which time an ophthalmologist provided a diagnosis of status-post insertion of nasal lacrimal plastic tubes in 2011 by a civilian doctor in Dallas, Texas. Insertion of theses tubes was said to have had no beneficial effect. The examiner added that the Veteran's tearing could not be explained, and that the tubes placed by the civilian ophthalmologist unfortunately had no effect on the tearing. In September 2012, the AMC requested further clarification of the diagnoses. Two addenda were provided in January 2013. One indicated that the examiner was unable to render an opinion without resorting to speculation, and the other indicated that the examiner did not examine the Veteran and it was underminable as to his current status regarding his eye conditions. In February 2013, the AMC requested an independent VA medical opinion so as to resolve the opinions raised by the VA examiner in August 2011. Thereafter, in a letter dated February 21, 2013, an opinion was provided addressing the Veteran's asserted eye disability by a VA contracted podiatrist. In an April 2013 Appellant's Post-Remand Brief, the Veteran's representative noted that that the medical opinion addressing the Veteran's eye disability was rendered by a podiatrist and asserted that the podiatrist was not an appropriate specialist as directed by the Board. The Board concurs with the Veteran's representative and finds that the complex medical questions posed with regard to the Veteran's asserted eye disability must be addressed by a qualified ophthalmologist. As such, this matter must be remanded so as to obtain the requested medical opinion from an appropriate specialist, specifically, an ophthalmologist. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance; in such situations the Board must again remand the case for compliance with the remand orders. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall afford the Veteran a VA eye examination by an ophthalmologist that has not previously examined him, in order to address the nature and etiology of his asserted eye disability. The claims file and a copy of this remand must be provided to the examiner and reviewed prior to the examination. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed. The results of such must be included in the examination report. The examiner is advised that a private evaluation in 2010 provided diagnoses of epiphora and NLD stenosis. This has not been addressed by a VA examiner. The examiner is further advised that the Veteran had service in Southwest Asia. Accordingly, service connection may be established for a disability based on an undiagnosed illness where there are unexplained symptoms. The examiner is requested to provide details about the onset, frequency, duration, and severity of the Veteran's complaints, and discuss what precipitates and relieves them. It should then be determined, based on a review of symptoms, physical findings, and laboratory tests, if these problems are attributable to any known diagnostic entity or entities. All necessary testing should be performed. The examiner shall address any of the foregoing symptoms, or abnormal findings pertaining thereto, that cannot be attributed to a known clinical diagnosis. The examiner shall consider that symptom-based "diagnoses" are not considered known diagnostic entities for compensation purposes. The examiner shall also consider that the Veteran has previously been found to suffer from, among other things, "dry eyes/meib stasis ou" according to several VA eye clinic assessments. At times, epiphora and NLD stenosis have been found. The final report of the examination must set forth a list of conditions pertaining to the Veteran's complaints of blurred vision, white spots, dizziness, and watering eyes. This would include the epiphora and NLD stenosis whether diagnosed by VA or not. The examiner is requested to provide an opinion as to whether it is at least as likely as not that any of those conditions can be attributed to service, including the head injury the Veteran sustained in service or his surgeries in 2000; and a separate list of any symptoms, abnormal physical findings, and abnormal laboratory test results relating to those complaints that cannot be attributed to a known clinical diagnosis. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be provided. A complete rationale for all opinions must be provided. 2. The AOJ will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The AOJ will then readjudicate the Veteran's claim of service connection. If a benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran may submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs