Citation Nr: 1319802 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 08-03 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a facial scar. 2. Entitlement to an initial rating higher than 10 percent for a scar on the left eyelid REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1982 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decision in May 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal, in rating decision in November 2010, the RO determined that there was clear and unmistakable error in a rating decision in May 2007 as to a single rating for scars of the left eyebrow, left shoulder, and right knee. The RO then assigned a separate 10 percent rating each of the three scars (of the left eyelid, left shoulder, and right knee). On the basis of the Veteran's notice of disagreement, the separate 10 percent ratings constitute a complete grant of the benefit sought. In March 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In May 2012, the Board remanded the claims for further development. No further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A facial scar other than a scar on the left eyelid is not shown. 2. The scar on the left eyelid is manifested by a .3 by 1 cm scar located over the lateral aspect of the left eyelid, that is tender or painful, but not adherent to underlying tissue, without elevation or depression, and is superficial without inflammation, edema or keloid formation; and is not productive of tissue loss, gross distortion or asymmetry of any facial feature, or with more than one characteristic of disfigurement, and there is no related limitation of function of the affected part. CONCLUSIONS OF LAW 1. The criteria for service connection for a facial scar other than a scar on the left eyelid have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for an initial rating higher than 10 percent for a scar on the left eyelid have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800 to 7805 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter in November 2006 on the claims of service connection for a facial scar and for a left eyelid scar. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). On the claim for increase, where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA and private medical records. The Veteran was afforded VA examinations in March 2007, June 2010, October 2011, June 2012 and October 2012. As the examination reports are based on a review of the Veteran's history and the current findings are in sufficient detail so that the Board's review is a fully informed one, the examination reports in combination are adequate to decide the claims. See 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). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for a scar on the left side of his face. He also seeks an initial rating higher than 10 percent for a scar on the left eyelid. Facts The service treatment records show no scar on the left side of the face at the ear. After service in March 2007 on VA examination, the Veteran stated he had a scar on the left ear and on the left eye from a vehicle accident. The VA examiner noted a scar on the left eyelid, which measured .3 by 1 cm, which was tender to touch but the Veteran denied there was pain or flare-ups. The scar did not adhere to underlying tissue. The texture was normal and the scar was stable. There was no elevation or depression. The scar was considered superficial without inflammation, edema, or keloid formation. The color was hyperpigmented throughout its entire dimension. The scar was located on the face but there was no gross distortion. There was no induration or inflexibility. There was no limitation on motion. The diagnosis was scar from laceration in a vehicle accident. There was no finding of a scar on the left ear. In June 2010 on VA examination, the Veteran stated that the scar on the left eyelid itched occasionally. The VA examiner described the scar as nontender and nonadherent. The scar was smooth. There was no instability, ulceration, elevation or depression. There was no underlying tissue loss, inflammation, edema, or keloid formation. There was no gross facial distortion, no induration, inflexibility, or limitation of motion or function caused by the scar. There was no finding of a scar other than the scar on the left eyelid. In October 2011 on VA examination, the findings were similar to the findings on the two previous VA examinations. There was no finding of a scar other than the scar on the left eyelid. In June 2012 on VA examination, the VA examiner described a scar over the left eyelid, 1 cm by .1 cm, which was painful, but not unstable. There was no abnormal pigmentation or texture of the scar. The scar did not result in limitation of function and did not impact the Veteran's ability to work. The VA examiner stated that the scar was well healed, barely visible on close inspection, and was consistent with a well-healed laceration. There was no finding of a scar other than the scar on the left eyelid. In October 2012 on VA examination, the VA examiner found no scars in the area of the left earlobe or jaw line. There are two sets of colored photographs taken in 2007 and in 2012. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Service Connection for a Facial Scar other than the Scar on the Left Eyelid Principles of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis In March 2012, in testimony, the Veteran described a scar on the left side of his face that was below the earlobe and the jaw line. On five VA examinations over a period of five years, not one VA examiner found a scar as described by the Veteran. On VA examination in October 2012 that was conducted for the purpose to determine whether such a scar was present, the VA examiner found no facial scar in the area of the left earlobe and jaw line. Although the Veteran is competent to describe a scar, which is capable of lay observation, not one VA examiner found such a scar. And the Board did not see such a scar in two sets of colored photographs taken in 2007 and in 2012. The Board finds that the reports of the VA examinations and the photographs are consistent and the objective findings are more probative than the Veteran's description of a scar. As there is no objective evidence of a scar other than a scar on the left eyelid, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply, and service connection is not warranted for a facial scar other than scar on the left eyelid. 38 U.S.C.A. § 5107(b). A Rating Higher than 10 percent for a Scar of the Left Eyelid General Rating Policy Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). During the appeal, the rating criteria for scars were amended effective October 23, 2008, and the amended criteria apply to claims received by VA on or after October 23, 2008. As the Veteran's claim was received prior to October 2008, the criteria prior to October 23, 2008, apply. The scar of the left eyelid is rated 10 percent under 38 C.F.R. § 4.118, Diagnostic Code 7804, which equates to a superficial and painful scar on examination. A superficial scar is one not associated with underlying soft tissue damage. Other potential applicable Diagnostic Codes are Diagnostic Codes 7800, 7803, and 7805. Unde Diagnostic Code 7800, a scar on face is rated on the basis on eight characteristics of disfigurement, which are: a scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); abnormal skin texture exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under Diagnostic Code 7800, disfigurement of the face with one characteristic of disfigurement warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7800. Disfigurement of the face with 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 rating. Analysis The scar of the left eyelid is rated 10 percent under Diagnostic Code 7804, which is the maximum schedular rating under Diagnostic Code 7804. As for a higher rating under Diagnostic Code7800 for facial disfigurement, visible or palpable tissue loss and gross distortion or asymmetry of one feature or paired set of features, the eyelids, are not shown on the color photographs or by objective findings And none of the eight characteristics of disfigurement are show to warrant a separate rating under Diagnostic Code 7800. The scar measures .3 cm by 1 cm or .3 sq. cm. The scar therefore is not 13 cm or more in length. The scar is not at least .6 cm in width. The surface contour is not elevated or depressed on palpation. The scar is not adherent to underlying tissue. The skin is not hypo-or hyper-pigmented in an area exceeding 39 sq. cm. There is no abnormal skin texture exceeding six square inches (39 sq. cm.) or underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.) or skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Codes 7801 and 7802 do not apply as the criteria apply to a scar other than one on the face. As for Diagnostic Code 7803, as the scar is not unstable, the criterion for a separate rating is not met. As for Diagnostic Code 7805, no functional loss of the eyelid or eyebrow has been associated with the scar, and the criterion for a separate rating is not met. For the above reasons, the preponderance of the evidence is against the claim for a rating higher than 10 percent or for other separate compensable ratings, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability level and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule under the appropriate Diagnostic Codes of 7800 and 7804, and the assigned schedule rating is adequate and referral for an extraschedular rating is not required. Total Disability Rating for Compensation based on Individual Unemployability The claim for a total disability rating for compensation based on individual unemployability is not reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER Service connection for a facial scar other than a scar on the left eyelid is denied. An initial disability rating higher than 10 percent for a scar on the left eyelid is denied ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs