Citation Nr: 1320629 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 06-21 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial higher rating for bilateral post- mammoplasty scars, evaluated as noncompensably disabling from December 31, 1998, to June 14, 2000, and as 10 percent disabling from June 15, 2000, to October 23, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from December 1995 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) from a January 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection and assigned an initial noncompensable rating for scars resulting from the Veteran's mammoplasty (breast reduction surgery). The Veteran initiated a timely appeal with respect to that noncompensable evaluation. In a subsequent February 2002 rating decision, the RO increased the Veteran's evaluation to 10 percent, effective June 15, 2000. However, as that award did not constitute a complete grant of the benefits sought on appeal, the claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) During the pendency of this appeal, jurisdiction of the Veteran's claims file was transferred to the Newark, New Jersey RO. Thereafter, in April 2011, the Veteran testified at the Newark RO before the undersigned, who was authorized to conduct a hearing via videoconference from the Board's Central Office in Washington, D.C. A transcript (Tr.) of the hearing has been associated with the claims file. See 38 U.S.C.A. § 7107(c), (e)(2) (West 2002). In a November 2011 decision, the Board determined that the Veteran's post-breast reduction surgical scars warranted an initial 10 percent rating for the period extending from the date of service connection (December 31, 1998) through June 14, 2000. The Board then continued the Veteran's previously assigned 10 percent rating from June 15, 2000, to October 23, 2008, and awarded a higher 20 percent rating thereafter. While the Veteran did not contest the 20 percent disability award, she appealed the assignment of the initial 10 percent rating to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, the Court issued an October 2012 Order vacating the initial rating assignment and remanding the case to the Board for further action consistent with the terms of the Joint Motion. FINDING OF FACT From the effective date of service connection (December 31, 1998) through October 22, 2008, the Veteran had four post-breast reduction surgical scars, each which measured approximately 28 centimeters (cm) x 0.5 cm. The scars were accompanied by pain, tenderness, and numbness, but devoid of instability. CONCLUSIONS OF LAW 1. From the effective date of service connection through June 14, 2000, the criteria for an initial disability rating of 10 percent, but no higher, for post-breast reduction surgical scars were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10 (2012); 4.118, Diagnostic Code (DC) 7804 (prior to August 30, 2002). 2. From June 15, 2000, through October 22, 2008, the criteria for a disability rating in excess of 10 percent for post-breast reduction surgical scars were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10 (2012); 4.118, DC 7804 (prior to and effective August 30, 2002, but before October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS Notice and Assistance Requirements The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1) (2012). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). Relevant to the Veteran's post-mammoplasty scarring claim, the only issue decided herein, VCAA notice was provided in a letter issued in June 2008. That letter specifically advised the Veteran of the evidence needed to substantiate her claim for increased compensation for her breast reduction surgical scars. In addition, that letter described in detail how VA assigns a disability rating and an effective date following the initial grant of service connection. Therefore, that letter satisfied both the threshold VCAA notice criteria as well as the heightened requirements set forth in Dingess. The Board acknowledges that the above VCAA notice letter was mailed to the Veteran following the unfavorable adjudication of her surgical scarring claim. Nevertheless, the Board finds that any prejudice arising from that late VCAA notice has been effectively cured by the subsequent readjudication of the Veteran's claim in a March 2010 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In that SSOC, the agency of original jurisdiction (AOJ) considered all of the pertinent evidence of record, including the clinical findings and lay argument that had been elicited on remand. Accordingly, the Board finds that the delay in VCAA notice has neither deprived the Veteran of effective participation in the processing of her surgical scarring claim nor affected the essential fairness of the decision. As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). With respect to the duty to assist, the AOJ has obtained the Veteran's complete service treatment records, as well as all post-service VA treatment records that are relevant to her claim. Significantly, the Veteran has not alerted VA to any additional missing records relevant to the issue on appeal. Nor has the claims file otherwise suggested that pertinent records remain outstanding. Accordingly, the Board finds that further records development would unnecessarily burden VA resources without benefit to the Veteran and, thus, should not be undertaken. See Sondel v. West, 13 Vet. App. 213, 221 (1999). Similarly, the Board finds that an additional VA examination should not be undertaken in support of the Veteran's increased rating claim. She already has been afforded two VA examinations, which have comprehensively assessed the nature and severity of her post-mammoplasty scarring. Significantly, the Veteran has not argued, and the record has not otherwise shown, that this service-connected disability has worsened since her most recent VA examination. As such, while mindful of the subsequent passage of time, the Board finds that the Veteran is not entitled to another VA examination in this instance. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Nor is the Veteran entitled to another Board hearing as she has already had the opportunity to present detailed testimony before the undersigned Acting Veterans Law Judge. 38 C.F.R. § 20.700(a) (2012). The transcript (Tr.) of that proceeding reflects that the undersigned set forth the issue of increased compensation for breast reduction residual scaring at the start of the hearing. The undersigned then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the issue on appeal or by neglecting to suggest the submission of evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during her videoconference hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied with respect to the 38 U.S.C.A. § 1151 claim and, thus, appellate review of that issue may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Applicable Law Disability ratings are determined by evaluating the extent to which a service-connected disability - in this case, breast reduction surgical scars -- adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and the claimant is seeking an increased rating, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Of particular significance in the instant case are the anti-pyramiding provisions of 38 C.F.R. § 4.14. In essence, these provisions prohibit the evaluation of the same disability under various diagnoses. 38 C.F.R. § 4.14 (2012). Conversely, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for distinct symptomatology, which neither duplicates nor overlaps with the symptoms rated under another diagnostic code. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In addition to providing for separate evaluations under the guidelines set forth above, the Rating Schedule allows for staged ratings when the factual findings reveal distinct time periods during the appeal in which the service-connected disability warrants different evaluations. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). In this case, the Veteran's breast reduction surgical scars were previously found to warrant staged ratings of 0 percent from December 31, 1998, to June 14, 2000; 10 percent from June 15, 2000, to October 22, 2008; and 20 percent from October 23, 2008, to the present. As noted in the Introduction, the Veteran has not contested the assignment of her 20 percent disability rating. Rather, her appeal to the Court has focused exclusively on the initial ratings in effect from December 31, 1998, to October 22, 2008. Moreover, in granting the Joint Motion for Remand, the Court has indicated that the evaluation assigned for the remainder of the appeals period should not be disturbed. Accordingly, the Board will confine its analysis to the appeals period prior to October 23, 2008. During this initial rating period, the Veteran's breast reduction surgical scars were evaluated under the diagnostic code governing unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. The Board has considered applying alternate diagnostic codes to evaluate the Veteran's service-connected disability. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this regard, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the Board finds that, in addition to DC 7804, the other diagnostic codes for rating scars are potentially applicable. 38 C.F.R. § 4.118, DC 7800-7806. Moreover, the Board recognizes that, since the effective date of service connection (December 31, 1998), those diagnostic codes have been twice revised, first in August 2002 and later in October 2008. See 67 Fed. Reg. 49,590-595 (effective August 30, 2002); 73 Fed. Reg. 52710 (effective October 23, 2008). However, the most recent version of those codes does not retroactively extend to the appeals period at issue - i.e., the period before October 23, 2008 -- and, thus, need not be specifically addressed. Conversely, the scar codes in effect both prior to and immediately after August 30, 2002, are for application. Accordingly, the Board now turns to the specific diagnostic criteria contained in those rating codes. Under the criteria that took effect prior to August 30, 2002, compensation is warranted for scars that involve the head, face or neck and are moderately disfiguring (DC 7800); are the result of a third degree burn that exceed an area or areas of six square inches (38.7 square centimeters) (DC 7801); are the result of a second degree burn that involves an area or areas approximating one square foot (0.1 square meters) (DC 7802); are superficial and poorly nourished with repeated ulceration (DC 7803); or are superficial, tender, and painful on objective demonstration (DC 7804). 38 C.F.R. § 4.118, DCs 7800-7804 (1996). In addition, the pre-August 30, 2002, criteria direct that scars not otherwise ratable under the other diagnostic codes are to be evaluated on the basis of limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805 (1996). Pursuant to the criteria that took effect on August 30, 2002, compensation is warranted for scars affecting the head, face or neck that are associated with one or more characteristics of disfigurement (DC 7800); are deep or productive of restricted motion and exceed an area of areas of 6 square inches (39 square centimeters) (DC 7801); are superficial, not productive of limitation of motion, and involve an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); are superficial and unstable (DC 7803); or are superficial and painful on examination (DC 7804). 38 C.F.R. § 4.118, DCs 7800-7804 (effective August 30, 2002). Moreover, as with the older criteria, scars not otherwise contemplated by the other diagnostic codes are to be rated based upon functional impairment of the affected part. 38 C.F.R. § 4.118, DC 7805 (effective August 30, 2002). Both the diagnostic codes in effect prior to and after August 30, 2002, define an unstable scar as one manifested by frequent loss of skin over the affected area. See 38 C.F.R. § 4.118, DC 7804, Note (1) (prior to and effective August 30, 2002). In applying the both versions of the aforementioned codes, the Board has an obligation to consider which version (if any) will yield the most favorable evaluation based upon the evidence presented. See VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (noting that new law or regulation has prohibited 'retroactive effects' if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have 'retroactive effects'). Facts & Analysis In this case, the evidence presented during the relevant appeals period includes VA medical records generated prior to October 23, 2008. Those records reflect periodic treatment for chronic pain at the lateral aspects of the Veteran's chest, which she claimed has persisted since her April 1997 breast reduction surgery. Also of record are reports of VA examinations, conducted in May 1999 and September 2001. Those examination reports collectively show that the Veteran's breast reduction surgery has resulted in four hypertrophic scars, each of which measures approximately 28 cm x 0.5 cm. The scars, which extend over the Veteran's lateral, lower, and medial breasts, are numb to the touch, occasionally painful, and productive of post-inflammatory hyperpigmentation. However, none of the scars qualifies as unstable for VA rating purposes. See 38 C.F.R. § 4.118, DC 7804, Note (1) (prior to and effective August 30, 2002). In addition to the foregoing clinical findings, the evidence obtained during the relevant appeals period includes a June 2000 written statement in which the representative of the Veteran relates her complaints of painful breast reduction scars. In a subsequent July 2008 written statement, the Veteran herself attests to numbness, tenderness, and pain in the vicinity of those scars. She alleges that those symptoms have worsened, in general, during the pendency of the appeal and are exacerbated, in particular, by variations in temperature. The above statements essentially make the case for a 10 percent disability rating under both the pre- and post-August 30, 2002, versions of DC 7804. Tellingly, however, none of the pre-October 2008 communications from the Veteran and her representative profess entitlement to an initial evaluation above 10 percent. Nor do any of those early communications argue for separate ratings based upon multiple scars. To the contrary, such an argument has only been made, in the first instance, in the Joint Motion for Remand of the November 2011 Board decision. In essence, the parties to the Joint Motion have criticized the Board for failing to reconcile its award of a single 10 percent evaluation prior to October 23, 2008, with its finding that the Veteran had multiple scars during the same rating period, noting: It is unclear why the Board determined that Appellant's scars warranted only the one rating . . . for the period prior to October 23, 2008, when the Board found she had four scars during that time period. . . . For the period prior to October 23, 2008, DC 7804 states "[s]cars which are painful on examination may be rated a maximum rating of 10 percent disabling.' Unlike the DC 7804 in effect October 23, 2008, the criteria prior to that time do[] not include the number of scars in the rating criteria. On remand the Board should discuss this apparent contradiction and provide an adequate statement of reasons or bases for assigning the one rating for the four scars for the period prior to October 23, 2008. See October 2012 Joint Motion for Remand at p. 3. The parties' directive, as set forth in the Joint Motion, is binding on the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with an Order of the Court extends to the terms of the agreement struck by the parties that forms the basis of the Joint Motion for Remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (holding that the Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Thus, in compliance with that directive, the Board shall now address the "apparent contradiction" between the various versions of DC 7804 and then explain its reasons and bases for assigning a single 10 percent scar rating for the period prior to October 23, 2008. Unlike the most recent version of DC 7804, the diagnostic criteria in effect before October 23, 2008, do not provide for distinct disability ratings based on the various numbers of scars at issue. Nevertheless, those earlier versions of DC 7804 expressly contemplate multiple scars in the assignment of a single rating. Indeed, this is clear from the use of the plural "scars" in the underlying rating criteria. As discussed above, the pre-August 30, 2002, version of DC 7804 allow for a single 10 percent disability rating for scars that are superficial, tender, and painful on objective demonstration. The subsequent version of that code contains similar criteria, envisioning a rating of 10 percent for scars that are superficial and painful on examination. Critically, neither version of DC 7804 authorizes separate evaluations for multiple scars that meet its respective rating criteria. Nor do any of the other applicable codes governing scars. To the contrary, Note 1 to the pre-August 30, 2002, version of DC 7801 expressly states that only scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, are to be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118, DC 7801, Note 1. The Board recognizes that this Note is not specifically directed at DC 7804. Nevertheless, the Board considers it logical to presume that, if separate ratings are prohibited for deep or functionally restrictive scars that are not widely separated, then such ratings are likewise impermissible for superficial, painful, and tender scars that are also in close proximity. Moreover, given that the surgical scars in this case are productive of overlapping symptoms -- specifically, pain, tenderness, and numbness - the Board has no basis to conclude that such scars are tantamount to "separate and distinct manifestations" of the same injury. It follows that the assignment of separate ratings would be tantamount to pyramiding and is therefore impermissible. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. The Board's reasoning in this regard is unaltered by the fact that there are four surgical scars, instead of just one, since all of those scars are accompanied by the same underlying symptomatology. Id. In addition to the language of the scar codes themselves and the anti-pyramiding provisions, the Board is guided by the Court's discussion in Jones v. Principi, 18 Vet. App. 248 (2004). As in the instant case, a key question underlying that precedential decision was whether separate ratings were assignable for multiple scars under the pre-October 2008 versions of DC 7804. Jones, 18 Vet. App. at 261. The Jones Court ultimately declined to resolve that question, but nevertheless surmised in dicta that there were "a variety of interpretative issues" that needed to be addressed before such a rating assignment could be made, noting: For example, 38 C.F.R. § 4.118, as it pertains to scarring, references both "scars" and "scar," and the consequences of such intermittent use of the plural and the singular are not entirely unclear. 38 C.F.R. § 4.118. More specifically, DC 7804 under which the appellant seeks multiple ratings contains the plural and its "Note (1)" contains the singular. 38 C.F.R. § 4.118, DC 7804. Moreover, the Court notes the possible disconnect between DC 7804, which may permit unlimited multiple ratings for less significant scarring, and DC 7800, which addresses more significant scarring but provides a maximum rating of 80%. See 38 C.F.R. § 4.118, DCs 7800, 7804. Similarly, it appears that interpreting "superficial[ and] painful" (38 C.F.R. § 4.118, DC 7804) to mean that each scar, regardless of size or physical location, could be rated at 10% may not comport with DC 7801, which provides ratings for severe scarring, of which the ceiling is a maximum 40% rating for a "[s]car[ ], other than [the] head, face, or neck, that [is] deep or that cause[s] limited motion," for an "area or areas" exceeding one square foot. 38 C.F.R. § 4.118, DC 7801. In this regard, the Court notes that DC 7801 appears to account for the physical size of a scar but not the number of scars. Jones, 18 Vet. App. at 261. The Jones Court's discussion illustrates the potential incongruity arising from the assignment of separate ratings for multiple superficial scars under DC 7804. Indeed, such a rating assignment not only would appear to flout the language of the code itself, which specifies a single evaluation for plural scars, but could also lead to higher compensation for superficial scarring than for more significant disfigurement, as set forth in DCs 7800 and 7801. Compounding this overall incongruity is the fact that, under the current version of DC 7804, a maximum 30 percent rating is permitted for "five or more scars that are unstable or painful." 38 C.F.R. § 4.118, DC 7804 (effective October 23, 2008). In contrast, under the Veteran's proposed interpretation of the earlier versions of that code, the same manifestations would warrant no fewer than five separate 10 percent ratings, and conceivably far greater compensation, if the total number of scars were large enough. This, in turn, could vastly widen the gulf in compensation between disability claimants who, like the Veteran, sought increased ratings for superficial scars prior to October 23, 2008, and those with similar claims that were received on or after that date. Tellingly, there is no indication in the final rule promulgating the October 23, 2008, scar code revisions, or in the public comments accompanying it, that VA in any way intended those regulatory changes to result in lower disability ratings. See 73 Fed. Reg. 54,708 (October 23, 2008). In fact, VA appeared to have the opposite intention, given its willingness to alter the proposed final rule in order to avoid such an outcome. See id. at *54,709 ("We do not intend the proposed regulation to produce a lower evaluation for scars of the trunk, and we agree that this could happen under the criteria we proposed . . . Accordingly, we have changed the first sentence of proposed note 2 under diagnostic codes 7801 and 7802 . . . "). As such, for the Board to construe the earlier versions of DC 7804 in a manner that presupposes a rating disparity with the later diagnostic criteria would appear inconsistent with the underlying purpose of those amendments. For the foregoing reasons, the Board interprets each of the pre-October 23, 2008, versions of DC 7804 as providing for a single disability rating for superficial scarring, irrespective of the total number of scars at issue. Accordingly, the Board finds that, for the appeals period prior to October 23, 2008, the Veteran's four breast reduction surgical scars were adequately compensated by the single 10 percent rating assigned under that diagnostic code. As discussed, 10 percent was the maximum evaluation then available under DC 7804. Moreover, the Veteran has not alleged, and the record has not otherwise shown, that her service-connected disability warranted compensable evaluations under any other scar codes. Therefore, the Board finds that, for the foregoing appeals period, higher or separate evaluations are unwarranted under the versions of DCs 7800, 7801, 7802, 7803, and 7805 in effect both prior to and after August 30, 2002. 38 C.F.R. § 4.118, DCs 7800-7803, 7805 (effective prior to and after August 30, 2002). The Board also finds that increased compensation is unwarranted under any other provision of the Rating Schedule. Indeed, the Veteran has neither contended nor otherwise suggested that, for the appeals period from to October 22, 2008, her breast reduction surgery was productive of residuals that fell outside the ambit of 38 C.F.R. § 4.118. Moreover, the Board can conceive of no other schedular provisions that could be used to rate her service-connected disability. The Board's analysis does not end here as it must now weigh whether to refer that service-connected disability for extraschedular consideration. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the applicable regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012), Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 115 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. In applying the Thun criteria to the facts of the instant case, the Board considers it significant that neither the Veteran nor her representative has expressly raised the matter of entitlement to an extraschedular rating in connection with her pending claim. To the contrary, their contentions have been limited to those discussed above, i.e., that her service-connected post-mammoplasty scars are more severe than reflected by the schedular evaluations hitherto assigned for the applicable rating period. See Brannon v. West, 12 Vet. App. 32 (1998) [while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant]. Moreover, the Veteran and her representative have not identified any factors that may be considered to be exceptional or unusual with respect to her service-connected scars and the Board has been similarly unsuccessful. Further, the record does not show that the Veteran has required frequent hospitalizations for her breast reduction surgical scars. Nor has that service-connected disability otherwise presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). In summary, the Board concludes that, from the effective date of service connection (December 31, 1998) until June 14, 2000, the Veteran's breast reduction surgical scars met the criteria for an initial 10 percent rating under the version of DC 7804 then in effect. 38 C.F.R. § 4.118, DC 7804 (prior to August 30, 2002). Conversely, the Board finds that, from June 14, 2000, until October 22, 2008, the Veteran did not qualify for an increased evaluation - i.e., a rating in excess of 10 percent already assigned -- under the applicable diagnostic criteria. See 38 C.F.R. § 4.118, DC 7804 (prior to and effective August 30, 2002, but before October 23, 2008). In making these determinations, the Board has considered the assignment of staged ratings, but has concluded that the Veteran's overall disability picture most closely approximated a 10 percent evaluation for the entire period prior to October 23, 2008. See Fenderson, 12 Vet. App. at 126. All reasonable doubt has been resolved in the Veteran's favor in making this decision. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER For the appeals period from December 31, 1998, through June 14, 2000, entitlement to an initial disability rating of 10 percent, but no higher, for post-breast reduction surgical scars is granted. For the appeals period from June 15, 2000, through October 22, 2008, entitlement to a disability rating in excess of 10 percent for post-breast reduction surgical scars is denied. ____________________________________________ D. B. WEISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs