Citation Nr: 1319197 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-02 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable rating for residuals of a burn to the left hand. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision that denied, in pertinent part, the Veteran's request for an increased rating for residuals of a burn to the left hand. In December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical opinion. The action specified in the December 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service connected residuals of a burn to the left hand are not shown to have been productive of deep and non-linear scars covering an area or areas of at least 6 square inches (39 sq. cm.), superficial non-linear scars with an area or areas of at least 144 square inches (929 sq. cm.), unstable scars, painful scars, or a limitation of function. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service connected residuals of a burn to the left hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.118, Diagnostic Codes 5228-5230, 7801, 7802, 7804, 7805 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran is seeking a compensable disability rating for residuals of a third degree burn and skin graft to the left hand. The Veteran was granted service connection for this disability in 1956 and assigned an initial non-compensable disability evaluation. In May 2009, the Veteran submitted his current claim for a higher rating. The relevant diagnostic codes for rating the Veteran's scars are Diagnostic Codes 7801-7805, which rates burn scars and other types of scars not of the head, face, or neck. Diagnostic Code 7800 rates scars or other disfigurement of the head, face, or neck and thus is not for application. The remaining diagnostic codes for rating disabilities of the skin rate specific disabilities, such as, for example, acne or eczema, for which the Veteran is not service connected. Under Diagnostic Code 7801, burn scars or scars due to other causes not of the head, face or neck, that are deep and non-linear warrant the assignment of a 10 percent rating for an area or areas of at least 6 square inches (39 sq. cm). Note (1) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801(2012). Under Diagnostic Code 7802, burn scars or scars due to other causes not of the head, face or neck, that are superficial and nonlinear warrant a 10 percent evaluation when they cover an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2012). Diagnostic Code 7804 allows for compensable evaluation for unstable or painful scars, regardless of the size. Note (1) of Diagnostic Code 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (3) makes clear that a scar rated under Diagnostic Code 7802 may receive an evaluation under Diagnostic Code 7804 when appropriate. For a 10 percent rating under the revised Diagnostic Code 7804, there must be a showing of one or two scars that are unstable or painful. For a 20 percent rating, there must be three or four scars, and for a 30 percent rating, there must be five or six scars. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). Diagnostic Code 7805 provides that scars may be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2012). In this case, the area affected is the Veteran's hand. Under Diagnostic Code 5228 for limitation of motion of the thumb, a non-compensable rating is warranted for a gap of less than one inch (2.5 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 10 percent rating is warranted when the gap is one to two inches (2.5 to 5.1 cm) and 20 percent when the gap is more than two inches (5.1 cm). 38 C.F.R. § 4.71a, Diagnostic Code 5228 (2012). Diagnostic Code 5229 evaluates limitation of motion for the index or long finger. 38 C.F.R. § 4.71a. A non-compensable rating is warranted for a gap of less than one inch (2.5 centimeter) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and extension limited by no more than 30 degrees. Id. A 10 percent disability rating, the maximum available, is warranted for a gap of one inch (2.5) centimeter or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or with extension limited by more than 30 degrees. Id. Diagnostic Code 5230 assigns a non-compensable rating for any limitation of motion of the ring or little finger. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Veteran was afforded three VA examinations regarding the scars on his left hand, one in June 2009 and two in May 2012. The VA examiner clarified her findings in a supplemental opinion in July 2012 and March 2013. Nonetheless, the Board believes that further clarification is needed. The June 2009 VA examiner noted that the Veteran's scars were well-healed and did not affect activities of daily living. The Veteran's range of motion was not affected. He reported to the examiner that the scars become painful when his hand is cold. The VA examiner identified "scars," and the entirety of the scarring was measured as one scar of 4 square centimeters. See VA examination dated June 16, 2009. The first May 2012 VA examination was a "Hand and Finger Conditions" examination, where the examiner was asked to assess any condition of the hand. The VA examiner noted that the Veteran again complained of increased pain to the scars in the winter with cold weather. Range of motion of the Veteran's left thumb, index finger, and long finger was affected. On initial range of motion testing, the Veteran was unable to touch the pad of his thumb to the tips of his fingers, leaving a gap of 1 to 2 inches, as well as the tips of his index and long fingers to the palm of his hand, leaving a gap of less than an inch. However, following repetitive testing, the gap between the Veteran's thumb and fingers was less than one inch. The VA examiner observed no evidence of painful motion, and did not find the scars on the Veteran's left hand to be unstable or painful. X-rays did not reveal arthritis. See VA examination dated May 5, 2012. The second May 2012 VA examiner focused on the Veteran's scars, and diagnosed well-healed burn scars across the top of the left hand, knuckles, and down to the proximal interphalangeal joints. The VA examiner found the left hand to have full active and passive range of motion. The Veteran's skin was noted to be supple and flexible; the scar was the same color as the surrounding skin. The examiner did not find the scars to be painful or unstable. The VA examiner opined that the Veteran's limited movement in the left hand was not due to his scars. Six deep non-linear scars were identified, with a total combined surface area of 4 square centimeters. See VA examination dated May 10, 2012. In July 2012, the VA examiner recalculated the surface area of the scars, and clarified that they cover 4.74 square centimeters. Although there were some apparent discrepancies among the VA examination reports, the totality of the record clarifies the nature and severity of the Veteran's left hand scars. The June 2009 VA examination appears to treat the Veteran's scarring as one scar; however, subsequent examinations to include the May 10, 2012, VA examination report clearly identifies six scars. Additionally, the June 2009 VA examination and May 10, 2012 VA examination reports had not specified any impairment in the Veteran's range of motion in his left hand; however, the May 5, 2012, VA examination specified how the Veteran's range of motion was limited. Finally, the Veteran explained in two of the VA examinations that his scars became painful in the cold, however, neither examination report commented as to which scars increased in pain, nor how frequently this posed problems for the Veteran. In December 2012, the Board remanded the matter to the VA examiner to obtain clarification. In the March 2013 addendum, the VA examiner restated her findings from the May 10, 2010 examination, identifying multiple scars with a total surface area of 4.74 sq. cm. She noted that the Veteran had no limitation of motion at the time of this examination and did not report any pain in cold weather at that time, concluding that "I can only report on what I was told. . ." VA treatment records were also reviewed, but it does not appear that the Veteran received any treatment for his burn scars at any time during the period on appeal. The Board finds that the claim must be denied under the rating criteria. The evidence does not show that the Veteran's residuals of a burn to the left hand are productive of deep, non-linear scars covering an area or areas of at least 6 square inches (39 sq. cm.), superficial and non-linear scars an area or areas of at least 144 square inches (929 sq. cm.), unstable or painful scars, or a limitation of function. The Veteran's scars cover a total combined area of at less than 5 sq. cm. Thus a compensable disability rating cannot be assigned under either Diagnostic Code 7801 or 7802. Additionally, although pain was subjectively reported in the past in cold weather, his most recent examinations have indicated that he is no longer complaining of this symptoms and pain has not been noted on objective examination. Accordingly, the Board finds that a compensable rating for painful scars is not warranted under Diagnostic Code 7804. Lastly, any limitation of function of the Veteran's left hand is non-compensable under Diagnostic Codes 7805, 5528, and 5529. While the VA examination on May 5, 2012 found some initial compensable limitation of motion of the left thumb, his range of motion actually improved following repetitive testing and was not productive of a compensable rating under Diagnostic Code 5228. At the VA examination on May 10, 2012, less than a week later, the Veteran was noted to have full range of motion of his finger. The Veteran also had full range of motion at an earlier VA examination in June 2009. Thus, the initial finding that the Veteran had some limitation of motion of the thumb appears to be an aberration in light of the findings both before and after this test. Considering the totality of the Veteran's disability, the preponderance of the evidence is against a finding that the Veteran's service connected residuals of a burn to the left hand cause any compensable limitation of function. The Board has considered the determination in Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to increased evaluations for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that the Veteran's evaluations should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disabilities on appeal such that an increased rating is warranted. The Board has also considered the Veteran's statements that his service connected disability is worse than currently evaluated. He is clearly competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to identify a specific level of disability pursuant to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's skin disorders has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings address the criteria under which the disability is evaluated. The Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. As the Board has noted above, no other diagnostic codes are applicable to the Veteran's disability. However, the Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. His complaints of pain and limitation of function are contemplated by the schedular rating criteria. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. Finally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. Thus, although the issue of TDIU was not addressed by the RO, the Board will address whether the Veteran has been entitled to TDIU for any time during the appeal period. In this case, the record reflects that the Veteran has been retired since 1995 and is now in his 80s. Although he has complained that he had difficulty finding work when he first got out of service, it appears that he was able to find work as a plumber and successfully practiced this trade for many years until his retirement in his early 60s. Thus, the evidence of record does not support a finding that the Veteran's disability, without regard to other medical conditions or age, rendered him unemployable during the period on appeal from May 2009 through the present. For all the above reasons, entitlement to a compensable rating for residuals of a burn to the left hand is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), 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. § 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. In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in June 2009. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The appellant was afforded VA medical examination in June 2009 and May 2012, with addendums in June 2012 and March 2013. Considered together, these examinations are adequate and probative for VA purposes because the examinations are based upon review of the claims folder and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a compensable rating for residuals of a burn to the left hand is denied. _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs