Citation Nr: 1320327 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 08-30 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial compensable rating for residuals of shrapnel fragment wound (SFW) of the left shoulder with scar. 2. Entitlement to an initial compensable rating for residuals of SFWs of the left leg with scars. 3. Entitlement to service connection for a scar located under the left eyebrow secondary to SFW. 4. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active duty from February 1968 to December 1969. His military awards and decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that, in pertinent part, granted service connection for SFW, left shoulder, with scar, and SFWs, left leg, with scars, assigning separate noncompensable ratings, both effective July 17, 2006. In May 2007, the Veteran expressed disagreement with the evaluations assigned. After the issuance of a statement of the case in July 2008, the Veteran perfected this appeal. On his VA Form-9, received in August 2008, the Veteran indicated that he wanted a Board hearing before a Veterans Law Judge. He opted for a video conference hearing (See May 2009 Hearing Election Form). Such a hearing was scheduled for May 2011; however, in correspondence received at the Board on the day of the scheduled hearing, the Veteran asked that his videoconference hearing be cancelled and that his case be continued. In December 2011 and November 2012, the Board remanded the claim for further development and it has since returned for further appellate consideration. The Board notes that a September 2007 rating decision denied service connection for a scar located under the left eyebrow secondary to SFW, and a December 2010 rating decision denied an increased rating for PTSD. The Veteran has initiated appeals to these rating decisions. Thus, these issues 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's two scars of the left lower extremity and one scar of the left shoulder are all superficial and productive of pain. 2. The Veteran's scars of the left lower extremity and left shoulder are not deep or productive of limited motion; do not cover areas of 144 square inches (929 sq. cm.) or greater or at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); are not unstable; are not productive of limitation of motion or other functional impairment of the left lower extremity or left shoulder; and are not due to burn scars. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for residuals of SFWs of the left leg with scars are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). 2. The criteria for an initial 10 percent rating for residuals of SFW of the left shoulder with scar are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VCAA letters were sent in January 2007, December 2011, and November 2012. The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess. With regards to the claim for a higher initial rating for the SFW scars, the Veteran is challenging the initial evaluation assigned following the granting of service connection for this disability. In Dingess the United States Court of Appeals for Veterans Claims (Court) held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. Id., at 490-91. Thereafter, once a notice of disagreement (NOD) has been filed contesting a "downstream" issue such as the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to the downstream element of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Here, in the NOD, the Veteran took issue with the initial disability ratings assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. Id.; see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103A, 5104, and 7105(d), the RO sent him an SOC that contained, in pertinent part, the criteria for establishing his entitlement to a higher rating for his disabilities and a discussion of the reasons and bases for not assigning a higher rating, meaning higher than the noncompensable ratings he received. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available, including his Social Security Administration (SSA) records, even though they did not pertain to his SFW scars. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disabilities since the Veteran was last examined. 38 C.F.R. § 3.327(a). 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 VAOPGCPREC 11-95. The VA examination reports are thorough and supported by the record. These examinations are adequate as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the examinations in this case are adequate upon which to base a decision. The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Furthermore, the Board notes that this case was remanded twice to obtain additional records and VA examination which has been undertaken. In obtaining the additional medical evidence, the Board is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as a "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and uniform ratings are warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran is service-connected for SFWs of the left shoulder and left leg, both with scarring. The Veteran has been assigned noncompensable ratings which are each rated under Diagnostic Code 7805. In February 2007, the Veteran was afforded a VA examination. It was noted that the Veteran sustained SFWs when he tripped on a booby trap during service. All of the shrapnel was removed and the wounds were stitched. He was hospitalized for over 48 hours. It was noted that the Veteran had stopped working due to an eye disability. Physical examination revealed a 1 by 2 centimeter scar in the left leg as well as another scar in that area measuring 1 by 2 centimeters. There was a 3 by 3 centimeter scar over the left shoulder. The scars on the left leg were hypopigmented. The left shoulder scar was pigmented. All of the wounds were superficial and were not deep. There was no penetration of any of the shrapnel fragments into muscles. The Veteran had no complaints relating to the scars. There was no pain or tenderness. All of the scars were well-healed. There was no adherence to underlying tissue, no ulceration or breakdown of the scars, and no functional limitation. There was also no edema, inflammation, or keloid formation. The scars were not elevated or depressed. Examination of the left shoulder joint was also performed. The findings were normal. The Veteran did not exhibit pain, any other DeLuca factors, or any other symptoms. The diagnoses were SFW of the left shoulder with scar and normal left shoulder joint; SFWs of the left leg with scars. In December 2011, the Veteran was afforded another VA examination. At that time, no specific complaints were made. On the left lower extremity, there were two site revealing scarring. The scars measured 1 by 1.5 and 1 by 2 centimeters, respectively. Both scars were nonadherent and superficial in nature. They did not involve musculature of the lower extremity. There was no apparent nerve involvement or vascular compromise. The wounds were not near any joint structures and in no way interfered with range of motion. There was also no underlying subcutaneous tissue. Examination of the left upper extremity (non-dominant) revealed a scar on the posterior aspect of the left arm which measured 2.5 by 1.5 centimeters and was faint. There was no loss of underlying tissue. The scar was not adherent to any surrounding tissue and there was no evidence of keloid formation. The scar was superficial and did not involve any musculature of the left upper extremity. Over the left shoulder, there was a 2.5 centimeter rounded mildly hypertrophic scar corresponding to a shrapnel wound site. It was nonadherent, superficial, and did not involve any musculature. Range of motion studies of the left shoulder and left leg did not cause pain or reflect limitations due to the scarring. None of the DeLuca factors or other symptoms were exhibited. The diagnoses were SFW of the left shoulder with mild hypertrophic, nonadherent, nontender scar, superficial, with normal range of motion; and SFW of the left lower extremity times two, superficial in nature, without interference with range of motion. It was again noted that all of the scars were superficial and did not involve the underlying muscles. In January 2012, the Veteran was afforded a third VA examination which was identical to the second examination. The Veteran reported, on his own and via his representative, that the scarring of the left leg and left shoulder area causes pain. The Veteran is certainly competent to report pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). During the pendency of this appeal, the regulations pertaining to the evaluation of the skin were amended, effective October 23, 2008. See 73 Fed. Reg. 54,708 (2008) (presently codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (October 23, 2008)). Generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. It was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). In the informal hearing presentation, the Veteran's representative cited to the amended changes; thus, the Veteran's claim is affected and is subject to the amended regulation from October 23, 2008 as this was an implicit request for such consideration. The Veteran was provided a copy of the criteria in his most recent February 2013 supplemental statement of the case. Under the rating criteria in effect prior to October 23, 2008, Diagnostic Code 7805 provided that scars may be rated on the limitation of function of the affected part. 38 C.F.R. § 4.118 (2008). Under Diagnostic Code 7801 scars other than on the head, face, or neck, where such are deep or cause limited motion, warrant a 10 percent evaluation for an area or areas exceeding six square inches (39 sq. cm.) and a 20 percent evaluation is warranted in an area or areas exceeding 12 square inches (77 sq. cm.). Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. The Veteran's scars of the left lower extremity and left shoulder are not deep or productive of limited motion. Under Diagnostic Code 7802, for scars, other than on the head, face, or neck that are superficial and that do not cause limited motion, a 10 percent evaluation is warranted in an area or areas of 144 square inches (929 sq. cm.) or greater. Note (2) indicates, that a superficial scar is one not associated with underlying soft tissue damage. The Veteran's scars of the left lower extremity and left shoulder are superficial, but are not covering areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7803, a 10 percent evaluation is warranted for an unstable scar, which is characterized by frequent loss of skin covering the scar (Note (1)), and a 10 percent evaluation is warranted for a superficial scar, which is one that is not associated with underlying soft tissue damage (Note (2)). The Veteran's scars of the left lower extremity and left shoulder are not unstable. Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. The Veteran's scars of the left lower extremity and left shoulder are not productive of limitation of motion or other functional impairment of the left lower extremity or left shoulder. Under Diagnostic Code 7804, a 10 percent evaluation is warranted for a superficial scar that is painful on examination. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. The Veteran's scars of the left lower extremity and left shoulder are superficial and the Veteran asserts are each productive of pain. The Board recognizes that the Veteran did not report pain on his examinations and certainly pain did not limit function in any way. However, from his notice of disagreement forward, he maintains that each scar causes him pain. In affording the Veteran all reasonable doubt with regard to his SFW disabilities, which resulted in his Purple Heart award, the Board finds that a 10 percent rating is warranted for the SFW scars, one on the left shoulder, and two on the left lower leg, pursuant to the former criteria. The 10 percent rating is the maximum rating under Diagnostic Code 7804 (2008). As noted, although Diagnostic Code 7805 provides for higher ratings based on limitation of function, the Veteran does not have any limitation of function of the left lower extremity or left shoulder. Thus, under the old criteria, a 10 percent rating is the highest rating for assignment. Turning to the revised criteria, under the revised regulations effective as of October 23, 2008, scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under Diagnostic Code 7805. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, (2012) Under Diagnostic Code 7801 burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. The Veteran does not have a service-connected burn scar, nor, as noted, are his scars deep of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. As noted, his scars do not cover an area of at least 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) 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 if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. The Veteran's scars are not unstable. However, as noted, they are painful. Under the new criteria, the two scars of the left lower extremity would be rated together as 10 percent disabling. Thus, the revised criteria do not provide a rating higher than that which the Board is granting in this decision. In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for the change must be explained, VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board has determined that Diagnostic Code 7804 (2008) provides the highest ratings available for the Veteran's SFW scarring. Thus, that code will be used. The Board further notes that while muscle and nerve damage have been considered given the fact that the Veteran suffered SFWs, the evidence of record uniformly shows that there was no muscle damage, nerve damage, or vascular damage sustained in this case. Thus, additional ratings based on such impairment is not warranted. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his SFWs. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disabilities on appeal have been more severe than the assigned disability ratings reflect. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, as noted above, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, supra; see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal. However, in deciding this appeal, the competent and credible lay statements of the Veteran have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms in order to award the benefits sought on appeal. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 10 percent for the Veteran's left lower extremity scars due to SFWs and the left shoulder scar due to SFW. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 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). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's SFW disabilities are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disabilities. He has not been hospitalized during the course of the appeal nor is there marked interference with employment. As noted, the Veteran had employment impairment due to eye disability. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a 10 percent rating for residuals of SFWs of the left leg with scars is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a 10 percent rating for residuals of SFW of the left shoulder with scar is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND As noted, a September 2007 rating decision denied service connection for a scar located under the left eyebrow secondary to SFW. In the informal hearing presentation, the Veteran's representative pointed to August 2008 correspondence and indicated that it was an NOD to this action. In addition, a December 2010 rating decision denied an increased rating for PTSD, which was followed by April 2011 correspondence which may be construed as an NOD to the December 2010 denial. In light of the foregoing, and as requested by the representative (as to the service connection claim), an SOC must be furnished as to each issue. The failure to issue a statement of the case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The Veteran should be sent an SOC as to the issues of service connection for a scar located under the left eyebrow secondary to SFW as well as entitlement to an increased rating for PTSD in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal on these issues, then the claim should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs