Citation Nr: 1318064 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-42 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a compensable rating for a residual scar from laceration of the right index finger. 2. Entitlement to service connection for skin disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to December 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue of entitlement to service connection for skin disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT During the rating period on appeal, there has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's residual scar from laceration of the right index finger results in tenderness, ulceration, scaling, tissue loss, or limitation of motion or loss of function. CONCLUSION OF LAW The criteria for a compensable rating for a residual scar from laceration of the right index finger have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 4.118, Diagnostic Codes 7801 to 7805 (in effect prior to October 23, 2008, and from October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice 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), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA correspondence dated in March 2008 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claims for increased ratings, of his and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). 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). Additionally, the August 2009 statement of the case (SOC) under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating skin disorders (38 C.F.R. §§ 4.118, Diagnostic Codes 7803 through 7805). The Veteran was thus informed of what was needed not only to achieve all available compensable schedular rating. The Board concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and VA and private medical records are in the file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO also provided the Veteran appropriate VA examinations in June 2008 and December 2010. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). Each VA examiner discussed the history of the Veteran's right index finger condition, conducted an examination of the Veteran, and elicited information from the Veteran concerning the functional aspects of his disability. As they provide sufficient detail to determine the current severity of the Veteran's service-connected disability, the Board finds that the VA examinations obtained in this case were adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Disability ratings are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection for a residual scar from laceration of the right index finger was granted in a December 2003 rating decision and a noncompensable initial rating was assigned effective December 21, 2003, under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran filed his present claim for an increased rating for his service-connected skin disability in February 2008. By the June 2008 rating decision on appeal, the RO continued the noncompensable rating for the Veteran's skin disability. The Veteran underwent a VA skin examination in June 2008. The VA examiner noted that the scar was from laceration of the right index finger on a metal part of truck while the Veteran was serving in Iraq. The Veteran reported numbness of scar area initially but now numbness and weakness of the hand. He also reported stiffness in the right hand with weather changes. On physical examination, the Veteran had a horizontal 1.0 cm linear hypopigmented scar over the distal interphalangeal (DIP) joint of the right index finger. The examiner noted that the scar was superficial with a normal texture, without irregularity, atrophy, or scaling. There was no tenderness, adherence, ulceration or breakdown, elevation or depression, underlying tissue loss, restriction on movement, inflammation, edema or keloid formation. The diagnosis was scar of the right index finger that was most likely related to accidental laceration while in service. In a January 2009 VA treatment report, the Veteran related that his right hand felt weak some times. He reported numbness in the right index finger where he was injured during military service. He further reported stiffness in the morning but it worked out throughout the day. He denied pain. In February 2009, the Veteran was seen for an electrodiagnostic evaluation for pain in the right hand. He complained of pain and tingling in the right hand since 2003, predominantly involving the second and fourth digits. On focused neurological examination, he had normal tone and strength throughout. His deep tendon reflexes were symmetric. Sensory examination revealed normal sensation to pinprick, vibration and proprioception. Following nerve conduction studies, the Veteran had normal electrophysiologic study of the bilateral upper extremities. VA treatment reports dated February and March 2009 reflect the Veteran's chief complaint of right hand stiffness since 2003 after a blunt hand injury to the right hand. He reported consistent soreness and slowly progressing pain. Pain was in the palm of the hand and was worse with typing and hand extension. He also reported numbness in the right hand that was most significant in the morning and increased difficulty with gripping small objects in the morning. A March 2009 x-ray of the right hand revealed soft tissue fullness in the region of the proximal interphalangeal joints of the index through small fingers. In a June 2009 VA treatment report, the Veteran continued to complain of stiffness in the morning and mild numbness to the right hand. It was noted that right hand magnetic resonance imaging (MRI) was essentially unremarkable. The assessment was right hand pain of undetermined etiology, possible early onset of rheumatoid factor (RF) stenosing tenosynovitis and carpal tunnel syndrome (CTS). The Veteran was provided another VA examination with regard to the right hand in December 2010. The VA examiner indicated that the Veteran's claims file was reviewed in conjunction with the examination. The Veteran reported pain on the medial aspect of the right index finger. He related that he incurred a small superficial laceration of the DIP joint on the volar aspect of the index finger. The examiner indicated that the area in question was superficial in nature and that it did not require sutures and healed spontaneously. The examiner noted that at the present time, the Veteran was not using splint and his symptoms were minor in that he had normal range of motion of all digits. The Veteran was employed as a medical supply facilitator at a hospital. He stated that he occasionally had discomfort in the distal aspect of the dominant terminal phalanx joint of the right hand. He was not taking any medication for the condition and had not seen by any physician for this condition recently. Physical examination revealed an extremely faint 2 mm x 1 mm small scar over the volar aspect of the right index finger terminal phalanx. The scar, itself, was not tender and non-adherent. There were no skin changes. There was no loss of underlying tissue or keloid formation. The grip and grasp were within normal limits. The range of motion of the right index finger revealed that metacarpophalangeal flexion was 0 to 90 degrees with the proximal interphalangeal flexion at 100 degrees and the distal interphalangeal flexion at 90 degrees without painful limitation. Fine and gross motor were intact, with no evidence of atrophy. There was no evidence of weakness to the range of motion of the digits; good strength and dexterity were shown. The ranges of motion during active and passive motion with three repetitions for all digits of the dominant right hand were within normal limits. The diagnosis was normal right hand, with no nerve condition. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare-ups. There were no incapacitating episodes or radiation of pain, or neurologic findings or effect on the usual occupation or daily activities. The examiner provided an opinion that it was less than a 50 percent probability that the Veteran's complaints referable to the right hand were related to the injuries recorded while on active military service. In support of this opinion, the examiner noted that the Veteran's clinical findings at the examination were normal with no abnormalities. The Board observes that, while the Veteran's claim was pending, new rating criteria for evaluating skin disabilities became effective on October 23, 2008; however, these regulations apply to claims filed on or after October 23, 2008. See 73 Fed. Reg. 54712 (September 23, 2008). The rating criteria applicable for rating scars, as in effect prior to October 23, 2008, are as follows: Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Thus, based on the forgoing, the Board concludes that a compensable rating is not warranted for the residual scar from laceration of the right index finger under Diagnostic Code 7805 because it does not result in any limitation of function of the right index finger. For this reason, Diagnostic Code 7801 is also not applicable in this case. In this regard, the Board notes that the June 2008 VA examination specifically noted that there was no restriction on movement of the finger and the December 2010 VA examination also reflects that the Veteran retained normal range of motion of all his digits, including the right index finger. The June 2008 and December 2010 VA examination reports reflect that the Veteran's scar from laceration of the right index finger is superficial in nature. However, the scar is clearly not in an area or areas of 144 square inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7802. The June 2008 examination report noted that the Veteran had a horizontal 1.0 cm linear hypopigmented scar over the DIP joint of the right index finger. The December 2010 VA examiner found, on physical examination, an extremely faint 2 mm x 1 mm small scar over the volar aspect of the right index finger terminal phalanx. Additionally, VA examinations reflect that there was no scaling, irregularity, ulceration or breakdown, or other skin changes associated with the scar, therefore the Veteran's right index finger scar is not an unstable scar. See Notes (1) and (2), Diagnostic Code 7803. Thus, a compensable rating under Diagnostic Code 7802 or 7803 is not warranted. Additionally, a compensable rating under Diagnostic Code 7804 is not in order, because the evidence of record does not reflect that the Veteran's right index finger scar was painful on examination. To that effect, both the June 2008 and December 2010 VA examinations indicate that on clinical examination, the scar was not tender. In particular, although the Veteran reported pain on the medial aspect of the right index finger, the December 2010 VA examiner specifically noted that the scar, itself, was not tender. The Board is aware of the Veteran's complaints regarding the severity of his right hand. He has reported numbness, weakness and stiffness in the right hand, and that he experienced difficulty with gripping or grasping. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Veteran is accordingly competent to report observable symptoms and the Board has no reason to doubt the credibility of such statements. However, the objective findings revealed that the examination was normal with no abnormalities; for this reason, the December 2010 VA examiner provided an opinion that the Veteran's complaints referable to the right hand were not related to the injuries recorded while on active military service. As the etiology of the Veteran's right hand symptoms is a complex medical issue, which is not within the realm of common knowledge or experience, and the Veteran has not been shown to have had medical training, the Board finds that the Veteran's contention concerning etiology is not competent evidence and therefore attaches far greater probative value to the December 2010 VA examiner's opinion as to whether the Veteran's right hand symptoms are related to his inservice right hand injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). As a result, the Veteran's assertions cannot constitute probative evidence that his service-connected scar of the right index finger warrants a compensable rating. In order to warrant a compensable rating under the rating code in effect from October 23, 2008, the evidence would have to reflect that the Veteran has a deep scar with an area or areas exceeding 6 square inches (39 sq. cm) (Diagnostic Code 7801), or that he has at least one or two scars that are unstable or painful (Diagnostic Code 7804). The evidence, as noted above, is against such a finding. Accordingly, considering all of the evidence of record, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a noncompensable rating for a residual scar from laceration of the right index finger. 38 C.F.R. § 4.7. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected skin disability. See Thun, 22 Vet. App. at 115. The Veteran's scar is evaluated by the rating criteria which specifically contemplate the characteristics of disfigurement, such as size and texture, as well as pain and limited motion or function loss, caused by this disability. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. When comparing the Veteran's symptoms with the schedular criteria, the Board finds that the Veteran does not have symptomatology associated with his skin disability that have been unaccounted for by the currently assigned schedular rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 through 7805. Accordingly, a comparison of the Veteran's symptoms resulting from his residual scar from laceration of the right index finger with the pertinent schedular criteria does not show that his service-connected skin disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's residual scar from laceration of the right index finger. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The Board finds that the evidence is against the assignment of a compensable rating for a residual scar from laceration of the right index finger, at any time during the rating period on appeal. As such, staged ratings are not for application. See Hart v. Mansfield, 21 Vet. App. 505 (2008). While the Veteran is competent to report the symptoms he experiences, and the Board finds him credible in this regard, the reported symptoms, other than those which have been clinically distinguished by the December 2010 VA examiner from the service-connected disability at issue, are consistent with the currently assigned schedular evaluation. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating. Consequently, the benefit-of-the-doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to a compensable rating for a residual scar from laceration of the right index finger is denied. REMAND In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, the Veteran claims that he has a skin condition with causes breakouts and dark spots in his face, which occurs monthly. He contends that this skin condition began while he was serving overseas in Iraq due to being swarmed and bitten by sand fleas on the face and arms that left small pimples and dark blotches on his skin. In his February 2010 substantive appeal, the Veteran reported that he was diagnosed with mild comedonal acne, which was caused by over-exposure to sun; he continues to report that the skin problem existed since his deployment to Iraq. The medical evidence of record shows a current diagnosis of skin disability. Specifically, an October 2009 VA dermatology consultation report reflects that the Veteran complained of occasional acne that left dark spots on his face and rough bumpy skin on elbows. The assessments included mild comedonal acne and dermatosis papulosa nigra. The Veteran was never provided a VA examination to determine the etiology of his currently diagnosed skin disabilities. However, the Veteran is certainly competent to provide lay evidence regarding the onset of the skin problem in service and observable symptoms that continued after service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay person is competent to testify to that which he or she has actually observed and is within the realm of his or her personal knowledge). Based on the foregoing lay testimony, the Board finds that the low threshold under McLendon is met in this case and a VA examination should be obtained to adequately decide the merits of the claim. McLendon, 20 Vet. App. at 83. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated treatment records for the Veteran from the Hines, Illinois VA Medical Center, and all associated outpatient clinics, dated from June 2009 to the present. All attempts to obtain those records should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the etiology of his currently diagnosed skin disabilities, to include mild comedonal acne and dermatosis papulosa nigra. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether any current skin disability is at least as likely as not (50 percent probability or more) related to his military service. In rendering the opinion, the examiner is asked to specifically consider and address the Veteran's lay statements regarding the onset of problems during service while serving in Iraq and the symptoms that continued since that time, as well as his contentions that his skin condition was caused by environmental factors such as being bitten by sand fleas and over-exposure to sun. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 3. Notify the Veteran that he must report for the scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the above development is completed, readjudicate the claim. If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs