Citation Nr: 1320009 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-21 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for right leg and hip disabilities, as secondary to back and left ankle disabilities. 2. Entitlement to an increased disability rating (evaluation) in excess of 10 percent for back disability prior to December 31, 2010. 3. Entitlement to an increased disability rating (evaluation) in excess of 10 percent for service-connected residuals of cystectomy, right axilla (right axilla scars). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from January 1968 to November 1968. The issue of an increased rating for service-connected right axilla scars comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In March 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). A transcript of the hearing is associated with the claims folder. The issue of service-connected residuals of cystectomy, left axilla, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the Veteran has already been granted entitlement to TDIU. Accordingly, further consideration of a TDIU is not warranted. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. For the entire period of increased rating appeal, the Veteran had tender superficial scars on her right armpit that did not cause limitation of motion, and did not cover an area of at least 12 square inches. 2. In February 2005, the Veteran filed claims to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities, and an increased rating for service-connected back disability. 3. In a November 2005 RO rating decision, the RO denied an increased rating for service-connected back disability and declined to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities. 4. In a September 2010 RO rating decision, the RO severed service connection for a back disability and a left ankle disability. The RO found that there was clear and unmistakable error (CUE) in the April 2004 rating decision that granted service connection for a back disability and the May 2004 rating decision that granted service-connection for a left ankle disability. 5. The Veteran was notified in an October 2010 Supplemental Statement of the Case that her claim for an increased rating for service-connected back disability and claim to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities, were deemed moot by virtue of the September 2010 RO rating action. 6. In November 2010, the Veteran filed a Notice of Disagreement for the issues of an increased rating for service-connected back disability, claim to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities, and increased rating for service-connected right axilla scars. 7. In August 2011, the RO provided the Veteran with notice that the Veteran's November 2010 correspondence would not be accepted as a Notice of Disagreement, because the September 2010 RO rating action mooted the Veteran's claim for an increased rating for service-connected back disability and her claims to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities. Neither the Veteran, nor her representative, responded to this notice. CONCLUSIONS OF LAW 1. For the entire increased rating period, the criteria for an increased disability rating in excess of 10 percent for service-connected right axilla scars have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, and 7805 (prior to Oct. 23, 2008). 2. Because service-connection for the Veteran's back disability was severed in a final September 2010 RO rating decision, the issue of an increased rating for back disability is no longer on appeal. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2002); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2012). 3. Because service-connection for the Veteran's back and left ankle disabilities were severed in a final September 2010 RO rating decision, the pending issues of whether new and material evidence has been received to reopen service connection for right leg and hip disabilities, as secondary to back and left ankle disabilities, are no longer on appeal. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2002); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was met by way of a letter from the RO to the Veteran dated in March 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of her appeal. The Veteran has been afforded a VA examination pertaining to the issue of an increased rating for right axilla scars. The report from this examination reflects that the examiner reviewed the Veteran's medical records, recorded her current complaints, conducted appropriate physical and mental examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that the RO has satisfied the duty to notify and the duty to assist. Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27 (2012). The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Increased Rating for Right Axilla Scars The present appeal involves the Veteran's contention that the severity of her service-connected right axilla scars warrant a higher disability rating. Essentially, the Veteran contends that the evaluation she has received for that condition does not accurately reflect its severity. The RO has evaluated the right axilla scars as 10 percent disabling pursuant to DC 7804. The Board notes that, during the pendency of the Veteran's claim and appeal, amendments were made to the criteria for rating the skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See VAOPGCPREC 7-2003; VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. However, the amended skin regulations effective October 2008 are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008). The Veteran filed her claim for an increased rating for right axilla scars in February 2007; therefore, the amended skin regulations effective October 2008 will not be addressed in the present decision. The Board notes that the amendment allows for a Veteran to request a review of a scar disability under the revised criteria irrespective of whether such Veteran's disability has increased since the last review. See 77 Fed. Reg. 2909-10 (Jan. 20, 2012). No such request has been made in this case. The below diagnostic criteria were in effect prior to October 23, 2008. DC 7800 provides for ratings for scars of the head, face, and neck, or other disfigurement of the head, face, or neck which have characteristics of disfigurement, or visible or palpable tissue loss and either gross distortion or asymmetry of feature(s). The ratings range from 10 percent to 80 percent depending on the number of characteristics of disfigurement or the number of features affected. DC 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 because 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. DC 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. DC 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to DC 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. DC 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to DC 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. DC 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The service-connected scars have been rated as 10 percent disabling under the provisions of DC 7804 for superficial scars that are painful on examination. In a January 2007 VA treatment record, the VA examiner reported four cystic lesions in the armpit, with the largest one 1 x 1 cm. In a February 2007 VA treatment record, the VA examiner reported multiple small 1/2 to 1 cm cysts in the right axilla that were painful to the touch. In an April 2008 VA treatment record, the VA examiner reported two notable abscesses the size of the tip of her thumb in the Veteran's right axilla. In a separate 2008 VA treatment record, the VA examiner reported at least three tender masses all 1 cm or less in diameter without drainage or erythema. In a May 2008 VA treatment record, the VA examiner reported multiple mildly to moderately tender masses in the right axilla. In a September 2009 VA treatment record, the VA examiner reported a noninflamed small single cyst in the right axilla. In a November 2009 VA treatment record, the VA examiner reported the Veteran's right axilla had been flaring up recently and that she had minimal tenderness in the right axilla; the VA examiner also reported each axillae had scars, but no fluctuance, erythema, or drainage. A December 2009 VA treatment record reflected no axillary lymphadenopathy. In a March 2010 VA treatment record, the VA examiner reported both axillae were clear. In a December 2010 VA treatment record, the VA examiner reported small areas in the axillae, but noted nothing large, inflamed, or worrisome. A February 2011 VA treatment record reflected no axillary lymphadenopathy. In an August 2011 VA treatment record, the VA examiner reported bilateral axillary hidradenitis, but with no active symptoms. In a May 2012 VA treatment record, the VA examiner reported a little hidradenitis disease in her right axilla. In this case, the evidence shows superficial scars that were painful on examination. A 10 percent rating is the maximum rating under DC 7804 for superficial scars that are painful on examination. 38 C.F.R. § 4.118. The Board then turns to other possibly applicable diagnostic codes relating to the Veteran's scars. The Veteran's scars are on her armpit and not on the head, face, or neck, so DC 7800 is not applicable. To receive an increased disability rating in excess of 10 percent for scars on the armpit, under DC 7801, the scars must be deep or cause limitation of motion and cover an area of at least 12 square inches or greater. In this case, the scars only cover an area of at most three to four centimeters, which is less than 12 square inches, so a higher rating is not possible under DC 7801. An increased rating in excess of 10 percent is not warranted in this case under DC 7802 because 10 percent is the maximum schedular rating provided under DC 7802 for superficial scars that do not cause limitation of motion. The Veteran's scars have not been shown by the evidence to be unstable, that is a scar that for any reason, where there is frequent loss of covering of skin over the scar, so DC 7803 is not applicable. The Board also finds that the scars themselves do not cause any other disabling effects to warrant a separate rating, as indicated under DC 7805. As such, the Veteran is not entitled to an increased disability rating in excess of 10 percent for scars on the arm pit for any period. 38 C.F.R. § 4.118. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for service-connected right axilla scars. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's scars are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, DC 7804, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's scars have manifested scars that are tender to the touch. These symptoms are part of the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on her daily life. In the absence of exceptional factors associated with the Veteran's scars on her right arm pit, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Dismissal Criteria The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a). One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101(d). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. Dismissal of Increased Rating for Back Disability and Whether to Reopen Service Connection for Right Leg and Hip Disabilities In February 2005, the Veteran filed a claim to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities. In a November 2005 RO rating decision, the RO denied an increased rating for service-connected back disability and declined to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities. In a September 2010 RO rating decision, the RO severed service connection for a back disability and a left ankle disability. The Board finds that the claim to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities, and claim for an increased rating for service-connected back disability, were pending at the time of the September 2010 RO rating decision. "A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated." Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (citing 38 C.F.R. § 3.160(c)). In this regard, when a claimant properly appeals the denial of a claim for benefits from the RO to the Board, that appeal remains in appellate status until it is resolved by the Board. See, e.g., Meyers v. Principi, 16 Vet. App. 228, 235-36 (2002). Pursuant to the "implicit denial" rule, "in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [ ] VA did not expressly address that claim in its decision." Adams, 568 F.3d at 961. A claim has been implicitly denied when a regional office decision "'discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected.'" Id. at 963 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007)). Relevant factors in determining whether a claim has been implicitly denied include the timing and relatedness of the implicitly and explicitly denied claims. Id. at 963-64. In Andrion v. Shinseki, 2012 WL 803118 (March 13, 2012), the Court held that "the lynchpin of the implicit denial rule is that a final decision on one claim or issue is discussed in such a manner as to provide notice to the claimant that another, closely related claim or issue has been decided unfavorably, even if not explicitly discussed." Id. at *9 (citing Adams, 568 F.3d at 963-64). The Court held that "it should be self-evident to any claimant that a pending appeal seeking a higher disability rating for a service-connected disorder is implicitly denied whenever an intervening final Board decision severs service connection for that disorder and concludes that it was clear and unmistakable error to award benefits for the disorder in the first place." Id. In the September 2010 rating decision, service connection for back and left ankle disabilities was severed. The RO found that there was CUE in the April 2004 rating decision that granted service connection for a back disability and the May 2004 rating decision that granted service-connection for a left ankle disability. It is important to note that the Veteran did not appeal the severance issues in the September 2010 RO rating decision. Pursuant to the Court's reasoning in Adams and Andrion, the RO's September 2010 rating decision that severed service connection for back and left ankle disabilities constituted an implicit denial of any pending appeal related to the appropriate disability rating for back disability or to claims for secondary service connection. However, here, it is not even necessary to reach whether there was an implicit denial, since the RO explicitly informed the Veteran that the pending claims were moot in light of the severance decision. This was done in an October 2010 supplemental statement of the case. The Veteran did not contest the RO's conclusion that her pending appeals had become moot. The Board concludes the RO took the appropriate action. The Veteran was seeking an increased rating for the service-connected back disability. VA's regulations state " [a] retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection." 38 C.F.R. § 3.400(o)(1). In other words, once service connection was severed, the pending claim for an increase was moot because under law no retroactive increase could be granted. As for the claims to reopen secondary service connection, when the decisions granting service connection for back and left ankle disabilities were found to have contained CUE and service connection was severed, it was as if service-connection had never been granted for those disabilities. Under VA regulation, "[f]or the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of [CUE] has the same effect as if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.105(a). Under the regulation, a finding of CUE in a prior decision must be implemented as if it had been made on the date of the prior decision. This necessarily implies retroactive effect. Because the Veteran was no longer service-connected for a back disability or left ankle disability, claims to reopen service connection for right leg and hip disabilities, as secondary to service-connected back and left ankle disabilities, were rendered moot. Therefore, the Board finds that there is no longer any case or controversy pending before the Board with respect to these issues as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4. [Continued on Next Page] ORDER An increased disability rating in excess of 10 percent for right axilla scars is denied. The appeal for service connection for right leg and hip disabilities, as secondary to back and left ankle disabilities, is dismissed. The appeal for an increased rating in excess of 10 percent for back disability, is dismissed. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs