Citation Nr: 1319752 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 11-01 125 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial rating (or evaluation) in excess of 10 percent for Legg-Calve-Perthes disease, status post open reduction internal fixation (ORIF) and intra-trochanteric fracture, of the right hip. 2. Entitlement to an initial rating in excess of 10 percent for right leg shortening due to Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture. 3. Entitlement to an initial compensable rating for surgical scars of the right hip. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from August 2003 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the RO in Waco, Texas, which granted service connection and assigned the initial ratings for right hip Legg-Calve-Perthes disease, right leg shortening, and right hip surgical scars. The Board has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system to insure a total review of the evidence. The Veteran testified before an acting Veterans Law Judge (VLJ) at the RO in April 2012. A transcript of the hearing is of record. The acting VLJ who held the hearing has since left the Board. The Veteran was notified in a February 2013 letter that the acting VLJ had left and was provided 30 days to request another Board hearing. He did not respond within 30 days. The Board will proceed to consider the case. The issues of higher initial ratings for Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture, and right leg shortening are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran has two surgical scars of the right hip which are not of the head, face, or neck, measure less than 6 square inches, are not unstable, do not result in limitation of function of the affected area, but are painful. 2. The schedular ratings criteria are adequate to rate the service-connected surgical scars of the right hip. CONCLUSION OF LAW The criteria for an initial evaluation of 10 percent, but no higher, for surgical scars of the right hip are met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's appeal for increased initial ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.327 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). 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. Id. The initial rating appeal arises from a granted claim of service connection. Compliance with the first notice element requires notice of the five service connection elements in initial ratings cases: (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. In this case, a March 2010 letter fully satisfied the duty to notify provisions, including notice of the degree of disability prior to initial adjudication of the Veteran's claim in April 2010. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Moreover, the Veteran's appeals for higher initial ratings stem from the disagreement with the initial ratings assigned in the April 2010 rating decision which granted service connection and assigned initial ratings. Because the appeal of those issues stems from the Veteran's disagreement with the initial ratings following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (2012) (no duty to provide VCAA notice arises upon receipt of a Notice of Disagreement). During the April 2012 Board hearing, the acting VLJ asked questions to help direct the Veteran's testimony, and inquired as to the extent and severity of his service-connected disabilities, how they caused impairment, and specific symptoms of disability. The Veteran reported during the hearing that he did not seek VA or private treatment for his right hip disabilities; as a result, no outstanding records could be obtained. In addition, the Veteran's testimony reflects that he understood the scar rating criteria, as he testified as to the scars' length, width, and pain with motion, and reflected an understanding of exposed versus non-exposed body surfaces. For these reasons, the Board finds that there is no indication there is any evidence regarding the scars that was overlooked or missing in this case that would require the hearing officer to notify the Veteran of the need to obtain such missing or overlooked evidence or that there was a reasonable possibility such evidence could substantiate the claim; thus, the duties under 38 C.F.R. § 3.103 (2012) that did arise were fulfilled. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the appeal. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran an appropriate VA examination regarding the surgical scars in April 2010. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The Veteran has testified regarding the length of his scars, which differs from the results in the VA examination; however, the Board has found his testimony not to be credible, as discussed below. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular ratings are adequate to compensate the surgical scar disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95. The 2010 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is an adequate basis on which to adjudicate the claim. Disability Rating Criteria The Board has thoroughly reviewed all the evidence in the Veteran's 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 evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must assess the competency, credibility and probative weight of the relevant evidence, both lay and medical, 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 veteran 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). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Initial Rating for Right Hip Surgical Scars The Veteran has been assigned an initial, noncompensable rating for surgical scars of the right hip. The rating has been assigned under Diagnostic Code 7805, for limitation of function of the affected part. 38 C.F.R. § 4.118. The ratings schedule addresses scars in Diagnostic Codes 7800 to 7805. Diagnostic Code 7800 rates scars of the head, face, or neck. Id. Diagnostic Code 7801 provides that scars other than on the head, face, or neck that are deep or that cause limited motion, and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. Id. According to DC 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. Id. A scar that is painful or unstable warrants the assignment of a 10 percent rating. Id., at Diagnostic Code 7804. Finally, Diagnostic Code 7805 provides that other scars (not otherwise considered under the rating schedule) are to be rated on the basis of limitation of function of the affected part. Note 1 to the criteria defines an unstable scar as is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 further provides that a superficial scar is one not associated with underlying soft tissue damage. Id. The Veteran's surgical scars are not of the head, face, or neck. A compensable rating is not warranted under Diagnostic Code 7800. 38 C.F.R. § 4.118. The surgical scars were measured in the April 2010 VA examination. One was eight inches long and a 1/4 inch wide. The other was seven inches long and less than 1/4 inch wide. Combined, they measure less than four square inches. The Veteran wrote in an August 2010 statement that the scars were nine inches long. During testimony in April 2012, he stated that his surgical scars were twelve inches long. The Board acknowledges that measurement of a scar in inches is a matter that a lay observer may competently report; however, the Board finds that the Veteran's report of twelve inch surgical scars is not credible. He did not testify that his scars had increased in length since his VA examination. His testimony is in direct contradiction to his previous August 2010 statement that they were nine inches long, as well as the specific clinical findings at the April 2010 VA examination. Given his contradictory statements and general nature of the Veteran's characterization as to the length of the scars measuring in feet, and the specific, precise clinical measures in inches and 1/4 inches by the VA examiner, the Board gives more probative value to the April 2010 VA examination measurements. Relying on the April 2010 VA examination report measurements, the Veteran's surgical scars would measure less than five square inches. Compensable ratings are not warranted for such small scars under either Diagnostic Code 7801 or Diagnostic Code 7802. 38 C.F.R. § 4.118. The Board notes that the April 2010 VA examination report does not indicate whether the scars are associated with underlying soft tissue damage; however, such a finding is only necessary where the scars in question are at least six square inches in area under Diagnostic Code 7801. As the scars do not measure at least six square inches, further development is moot. A compensable rating is also available for painful or unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. As stated, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. On examination in April 2010, the scars had healed well and had good adherence, without breakdowns, ulcerations, scaliness, inflammation, or atrophic changes. These observations demonstrate that the scars are not losing their coverings of skin. The Board finds that the surgical scars are not unstable. Compensable ratings for unstable scars are not warranted. Diagnostic Code 7804 also rates scars which are painful. 38 C.F.R. § 4.118. The April 2010 VA examination report states that the scars were non-tender. The Veteran's August 2010 Notice of Disagreement states that his scars do become tender. The Veteran is competent to report tenderness in his scars. Resolving reasonable doubt in his favor, the Board finds that the Veteran's surgical scars of the right hip are painful. An initial 10 percent rating is warranted under Diagnostic Code 7804. The surgical scars have also not resulted in limitation of function of the hip. The April 2010 VA examination report indicates that the Veteran had no limitation of function of the scar and no functional impairment. The Veteran had not alleged limitation of function. A compensable rating under Diagnostic Code 7805 is not warranted. The Board has considered the possibility of staged ratings; however, the Board concludes that the criteria for an initial rating in excess of 10 percent have at no time been met for any period. Accordingly, staged ratings are inapplicable. See id. Extraschedular Consideration The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluations for the Veteran's surgical scars are adequate to rate. The Veteran's only report of symptoms regarding his surgical scars was that of the length of the scars and pain, which are expressly anticipated in Diagnostic Codes 7801, 7802, and 7804. See 38 C.F.R. § 4.118. As a result, the schedular ratings criteria reasonably anticipate and compensate the manifestations of the right hip surgical scars. The Veteran merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected scar disability that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations reasonably describe the service-connected right hip surgical scars; thus, the schedular rating criteria are adequate to rate the Veteran's disability. The Board need not determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization." See Thun, 22 Vet. App. at 115. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The Board has resolved reasonable doubt in favor of the Veteran as to the question of whether his surgical scars are painful. Consequently, the benefit-of-the-doubt rule applies to the initial rating for his surgical scars, and the appeal is granted to the extent of awarding a 10 percent rating for the surgical scars. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Otherwise, the preponderance of the evidence weighs against a finding that the criteria for a rating in excess of 10 percent have been met. The benefit-of-the-doubt rule does not apply to ratings in excess of 10 percent, and the appeal must be denied as to initial ratings for right hip surgical scars in excess of 10 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER An initial 10 percent rating, but no higher, for surgical scars of the right hip is granted. REMAND The Board must remand the issues of increased initial ratings for Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture, and right leg shortening for a new VA examination pursuant to the duty to assist. The Veteran is entitled to a new VA examination because there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran testified in April 2012 that his service-connected right hip disability had worsened since the last VA examination. The last VA examination in connection with his claim was in April 2010. The Board finds that an additional evaluation would be helpful in resolving the issues raised by the instant appeal. The Board notes that the Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture, and right leg shortening are separate ratings for the same disability. As a result, the Board remands both for a new VA examination. Accordingly, the issues of higher initial ratings for Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture, and right leg shortening are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assist in determining the current nature and severity of his Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture, and right leg shortening disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should identify the limitation of activity imposed by the Veteran's service-connected Legg-Calve-Perthes disease, status post ORIF and intra-trochanteric fracture, and right leg shortening disabilities with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. The relevant documents in the claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) should be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE should be printed and associated with the paper claims file so they can be available to the examiner for review. 2. Then, the RO should readjudicate the initial rating claims on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs