Citation Nr: 1321199 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 10-26 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for arthritis of the left hand, to include as secondary to a shell fragment wound (SFW). 2. Entitlement to an increased disability evaluation for the residual scarring of a SFW to the left lower extremity, to include a compensable evaluation prior to April 15, 2010, and an evaluation in excess of 10 percent as of April 15, 2010. 3. Entitlement to an effective date prior to February 13, 2009, for the grant of service connection for the residuals of a SFW to muscle group XI. 4. Entitlement to an effective date prior to February 13, 2009, for the assignment of a 10 percent disability evaluation for the residual scarring of a SFW to the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In March 2013, the Veteran testified at a video conference hearing before the undersigned. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The Board notes that additional information has been added to the claims file since the issue of entitlement to an increased disability evaluation for scarring of the left lower extremity was last adjudicated in June 2010. Specifically, a VA muscle examination that noted minimal scarring of the left lower extremity. The Veteran has not submitted a waiver of initial review of this evidence by the Agency of Original Jurisdiction (AOJ). Nonetheless, a remand is not required, as this examination report adds no new relevant evidence to the Veteran's claim. See 38 C.F.R. § 20.1304 (2012). The Board further notes that the original issue perfected to the Board was entitlement to an effective date prior to April 15, 2010, for the assignment of a 10 percent disability evaluation for scarring of the left lower extremity. However, as will be discussed within the decision below, a 10 percent disability evaluation is warranted as of February 13, 2009. As the Veteran has alleged that he is entitled to a 10 percent disability evaluation back to 1970, the Board has rephrased the issue on appeal as entitlement to an effective date prior to February 13, 2009, for the assignment of a 10 percent disability evaluation for scarring of the left lower extremity. FINDINGS OF FACT 1. The Veteran's arthritis of the left hand did not manifest during, or as a result of, active military service, to include as due to a SFW. 2. As of February 13, 2009, the Veteran's scarring of the left lower extremity has been manifested by 2 deep scars - one that is 9 square centimeters in size and one that is 3 square centimeters in size. The Veteran has reported these scars to be tender with altered sensation; these scars have not totaled an area of 77 square centimeters or more and they have not resulted in disabling effects. 3. The Veteran was granted service connection for scarring of the left lower extremity in an August 1970 rating decision, rated as 0 percent disabling. The Veteran did not appeal this decision and it is final. 4. The record contains no evidence of VA medical treatment or hospitalization within one year of the August 1970 rating decision. 5. VA did not receive another claim pertaining to the left lower extremity, either formal or informal, until February 13, 2009. 6. An effective date prior to February 13, 2009, for the grant of service connection for SFW residuals to muscle group XI, is not warranted. 7. An effective date prior to February 13, 2009, for the assignment of a 10 percent disability evaluation for scarring of the left lower extremity due to a SFW is not warranted. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for arthritis of the left hand, to include as due to a SFW, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to a 10 percent disability evaluation for scarring of the left lower extremity, resulting from a SFW, as of February 13, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.79, 4.118, Diagnostic Codes 7801-05 (2012). 3. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for scarring of the left lower extremity, resulting from a SFW, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.79, 4.118, Diagnostic Codes 7801-05 (2012). 4. The criteria for establishing entitlement to an effective date prior to February 13, 2009, for the grant of service connection for the residuals of a SFW to muscle group XI, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.157(b)(1), 3.400 (2012). 5. The criteria for establishing entitlement to an effective date prior to February 13, 2009, for the assignment of a 10 percent disability evaluation for scarring of the left leg resulting from a SFW, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.157(b)(1), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans 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 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the claim of entitlement to service connection for arthritis of the left hand, a letter sent to the Veteran in March 2009 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This letter also notified the Veteran as to how the proper effective date is established. Regarding the Veteran's claim for a higher disability evaluation for scarring of the left lower extremity, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Such notice was provided to the Veteran in the March 2009 letter. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in May 2009 and April 2010, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. The Veteran has not contended and the record does not otherwise suggest a change in severity of his left lower extremity scarring at any time since the April 2010 examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran also presented testimony at a Board hearing in March 2013. The duties set forth in 38 C.F.R. § 3.103(c)(2) were met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for Arthritis of the Left Hand Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Facts and Analysis The Veteran contends that he is entitled to service connection for arthritis of the left hand. Specifically, the Veteran has asserted that he suffers from this condition as a result of a SFW sustained during military service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a disability of the left hand that arose during, or as a result of, active military service, to include as secondary to a SFW. As such, service connection is not warranted. The Veteran's service treatment records do not reflect that the Veteran sustained an injury to the left hand or that he incurred any chronic disability to the left hand during active military service. The Veteran's service treatment records reflect no complaints of symptomatology associated with the left hand. Also, according to the Veteran's February 1970 separation examination, an evaluation of the upper extremities was deemed to be normal. No marks or scars were noted, aside from the left calf and the right knee, and a left hand injury was not noted in the Veteran's summary of defects and diagnoses. Following his separation from active duty, VA received a claim from the Veteran seeking entitlement to service connection for the residuals of an infection to the left lower extremity. The Veteran did not mention a history of an injury to the left hand at this time. He was afforded a VA examination in April 1970, but the Veteran made no mention of left hand symptomatology. He did report a left leg infection due to shrapnel, however. A physical examination summary also makes no mention of the left hand. The Veteran was also hospitalized for Malaria in April 1971. When reporting his medical history, the Veteran described an injury to the left leg due to shrapnel. Again, however, there was no mention of a prior injury to the left hand. In fact, the record contains no evidence of symptomatology associated with the left hand until some 38 years later when VA received the Veteran's claim in February 2009. At this time, the Veteran indicated that he suffered from arthritis of the left hand due to a SFW. The Veteran was afforded a VA examination for his claimed condition in May 2009. The Veteran was claiming arthritis of the left 1st and 2nd fingers, secondary to shrapnel. The Veteran reported that he had two abrasions to the left hand at the time of the in-service SFW and that these wounds were cleaned and healed well. The Veteran reported that he had developed arthritis in the joints of these fingers more recently. The examiner concluded that it was less likely than not that the Veteran's arthritis of the fingers was connected to the wounds he reported during service. The examiner noted that the fingers were abraised in service and that such an injury would not result in arthritis. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for arthritis of the left hand, to include as due to a SFW. As an initial matter, the Board notes that the Veteran's service treatment records fail to reflect that the Veteran sustained any injury to the left hand. Nonetheless, the Veteran's DD-214 reflects that he was the recipient of the Combat Action Ribbon and the Vietnam Service Medal. If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In-service incurrence by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). In Reeves v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the combat presumption contained within 38 U.S.C.A. § 1154(b) not only applied to a combat injury, but also to the consequences of that injury (at least in service). 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the § 1154(b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Applying the combat presumption to the Veteran's case, the Board finds that his lay statements alone are sufficient to demonstrate that he suffered abrasions to the left hand during combat. However, they are not sufficient to demonstrate that this resulted in chronic arthritis, as the Veteran has not suggested that he suffered arthritis or any chronic disorder subsequent to his left hand abrasions during military service. Rather, he informed the VA examiner of record that his arthritis began "more recently," and that his abrasions were treated and healed well in service. Despite the sufficient lay evidence of an in-service injury, however, the preponderance of the evidence of record reflects that the Veteran's current arthritis is not related to this injury or any other aspect of military service. The first evidence of a chronic condition associated with the left hand is the Veteran's claim of February 2009 - this is approximately 39 years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the present case, the absence of any evidence of treatment or complaints involving the left hand for nearly four decades following separation from active duty tends to suggest that the Veteran has not suffered from a chronic disability since service. This is further confirmed by the Veteran's report to the VA examiner that his arthritis had begun "more recently." In fact, the Veteran has never alleged that his arthritis manifested during military service or shortly thereafter. Finally, the May 2009 VA examiner concluded that it was less likely as not that the Veteran's in-service injuries resulted in his present arthritis, as abrasion type injuries do not result in arthritis of a joint. The medical evidence of record shows that there is no causal connection between the current disability and the in-service injury. As such, the preponderance of the evidence of record demonstrates that service connection for arthritis of the left hand is not warranted. The Board recognizes that the Veteran believes his current arthritis of the left hand manifested as a result of injuries he sustained decades earlier. However, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer a medical opinion as complex as linking arthritis to abrasion injuries sustained decades earlier. See Jandreau, 492 F.3d at 1377. The VA examiner, however, who does contain the requisite expertise, explained that abrasion type injuries as described by the Veteran do not subsequently result in arthritis. Therefore, the Veteran's medical opinion as to the cause of his arthritis of the left hand is not probative. Finally, the Board notes that the Veteran reported in his March 2013 hearing that he included his left hand in his original claim of March 1970. However, a review of this claim reveals that the Veteran sought service connection for the residuals of an infection to the left lower leg, an injury to the right elbow and an eye condition. At no time did the Veteran mention his left hand. Likewise, he failed to mention his hand during his subsequent VA examination of April 1970. As such, the Board does not find his present assertion that he filed a claim for this disability in 1970 to be credible. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for arthritis of the left hand, to include as secondary to a SFW, must be denied. Increased Rating for Scarring of the Lower Extremity Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). 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). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). Facts and Analysis The Veteran also contends that he is entitled to an increased disability evaluation for his scarring of the left lower extremity, to include a compensable evaluation prior to April 15, 2010, and a disability evaluation in excess of 10 percent as of April 15, 2010. As outlined below, when resolving all reasonable doubt in favor of the Veteran, the evidence of record does suggest that a 10 percent disability evaluation is warranted as of February 13, 2009. However, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent is not warranted at any time during the pendency of this claim. For historical purposes, the Veteran originally filed a claim seeking service connection for the residuals of an infection to the left lower extremity in March 1970. Service connection for this disability was granted in an August 1970 rating decision, and a noncompensable (0 percent) evaluation was assigned under Diagnostic Code 7804, effective as of February 27, 1970. The Veteran did not appeal the assigned disability evaluation and it became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In February 2009, VA received a claim from the Veteran seeking service connection for a SFW of the left lower extremity. His 0 percent disability evaluation for scarring of the left lower extremity was subsequently continued in a June 2009 rating decision. A timely notice of disagreement was received from the Veteran in July 2009, and in a June 2010 rating decision, the Veteran's disability evaluation was increased to 10 percent, effective as of April 15, 2010. The Veteran subsequently appealed the assigned rating to the Board in June 2010. Therefore, the issues presently before the Board are entitlement to a compensable disability evaluation for scarring of the left lower extremity, prior to April 15, 2010, and, entitlement to a disability evaluation in excess of 10 percent as of April 15, 2010. The applicable evidence in this case is rather limited. The record does not reflect that the Veteran has sought treatment for scarring of the left lower extremity on an outpatient basis. He was afforded a VA examination for his scarring in May 2009. The Veteran was noted to have scarring of the left lower extremity due to a shrapnel wound. There was no pain or skin breakdown associated with this scar. The scar was noted to have a maximum width of 1 centimeter (cm) and a maximum length of 10 cm. The scar was not tender to palpation. However, it did adhere to underlying tissue with underlying soft tissue damage. It did not result in limitation of motion or loss of function, however. The Veteran was afforded another VA examination to determine the severity of his scars in April 2010. The Veteran complained of sensitivity to the scar with some difficulty with the muscle involved. The examiner noted that there was no bony involvement or any joint involvement by the fragment or subsequent infection. Examination revealed two very faint scars. One measured 3 by 3 centimeters (cm) while another measured 1 by 3 cm. There was altered sensation to light touch in the immediate area of the scars. The scars themselves, however, were well-healed without induration, inflexibility or resultant limitation of motion. The larger scar involved the loss of some muscle tissue from the belly of the left gastrocnemius muscle, measuring 3 by 3 cm and "perhaps" 2 cm in depth. There was no loss of function, however, for the muscle itself. The muscle group was able to move through the normal range, but with some discomfort when contracted. The Veteran was diagnosed with residuals of a shell fragment wound of the left calf. Finally, the Veteran was afforded a VA muscle examination in January 2012. The Veteran was noted to have "minimal scars" of the left lower extremity at this time. No further information was provided. Scars are rated at 38 C.F.R. § 4.118. Amendments were made to the criteria for rating the skin, effective as of October 23, 2008. Diagnostic Code 7801 applies to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. A 10 percent rating is warranted for scars covering an area or areas of at least 6 square inches (39 square cm) but less than 12 square inches (77 square cm.). A 20 percent rating is warranted for scars covering an area or areas of at least 12 square inches (77 square cm.) but less than 72 square inches (465 square cm.). A 30 percent rating is warranted for scars covering an area or areas of at least 72 square inches (465 square cm.) but less than 144 square inches (929 square cm.). A 40 percent rating is warranted for scars covering an area or areas of 144 square inches (929 square cm.) or greater. Note (1): A deep scar is one associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. Diagnostic 7802 applies to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. A scar covering an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. Diagnostic Code 7804 applies to scar(s) that are unstable or painful. A 10 percent rating is warranted when there are one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. None (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802 or 7805 may also receive an evaluation under this diagnostic code, when applicable. Diagnostic Code 7805 applies to scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802 and 7804. Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118 (effective as of October 23, 2008). As an initial matter, the Board finds that the Veteran is entitled to a 10 percent disability evaluation for his scarring as of February 13, 2009 - the date of receipt of his claim. The assignment of an increased disability rating as of April 15, 2010, is rather arbitrary, in light of the fact that this scar has existed since separation in 1970. While the May 2009 VA examination report fails to reflect that the Veteran's scar was in fact painful, there is nothing of record to suggest that it somehow underwent a material worsening between the date of this examination and the examination of April 15, 2010. Tenderness and abnormal sensation is certainly something the Veteran is competent to testify about, and there is nothing of record to suggest that these symptoms manifested for the first time some 40 years after separation from active duty. As such, resolving all reasonable doubt in favor of the Veteran, the Board finds that a 10 percent disability evaluation for scarring is warranted as of February 13, 2009 - the date of receipt of the Veteran's claim. However, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent is not warranted at any time during the pendency of this claim. Under Diagnostic Code 7801, a higher rating of 20 percent is warranted for scars covering an area or areas of at least 12 square inches (77 square cm.) but less than 72 square inches (465 square cm.). According to the Veteran's scar was 1 cm by 10 cm, or 10 square centimeters. The scars were noted to be 3 by 3 cm and 1 by 3 cm upon examination in April 2010, or, 9 square cm and 3 square centimeters. As such, a 20 percent disability evaluation is not warranted under Diagnostic Code 7801. A disability evaluation higher than 10 percent is not available under Diagnostic Code 7802. However, a 20 percent evaluation can be assigned under Diagnostic Code 7804 when there is evidence of three or four scars that are unstable or painful. However, in the present case, there is only evidence of two scars. As such, a higher evaluation rating is not warranted under Diagnostic Code 7804. Note (2) to Diagnostic Code 7804 does instruct the rater to add 10 percent for scars that are both unstable and painful. See 38 C.F.R. § 4.118. However, Note (1) defines unstable to mean "frequent loss of covering of skin over the scar." There is no evidence of such symptomatology in this case. The evidence also suggests that Diagnostic Code 7805 is not for application, as the Veteran's scars have been deemed to have no disabling effects not considered by Diagnostic Codes 7801 to 7804. See id. As such, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent for scarring of the left lower extremity is not warranted at any time during the pendency of this claim. The Board recognizes that the Veteran believes he is entitled to a disability evaluation in excess of 10 percent for his scarring of the left lower extremity. However, the Veteran has not provided VA with any evidence to demonstrate that he meets the criteria for a higher disability evaluation under any applicable diagnostic code. The Veteran testified to an impaired gait during his March 2013 hearing. However, the VA examiners of record concluded that the Veteran's scarring itself did not result in any functional impairment, suggesting that this symptom may be related to his muscle injury of the left lower extremity. This issue, however, is not presently before the Board. Therefore, the Veteran has not provided VA with any testimony to demonstrate that a disability evaluation in excess of 10 percent, for scarring of the left lower extremity, is warranted at any time during the pendency of this appeal. The Veteran is competent to report on symptoms and credible to the extent that he sincerely believes his disability is so severe as to warrant a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the scar impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has 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 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms include two scars of approximately 9 square centimeters and 3 square centimeters that are tender. Also, while they do adhere to underlying tissue, they result in no functional impairment. A 10 percent disability evaluation is meant to compensate a Veteran for this symptomatology. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-05. The rating schedule also allows for a higher disability evaluation upon a worsening of symptomatology. See id. Therefore, the rating criteria reasonably described the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Resolving all reasonable doubt in the Veteran's favor, the Board finds that a 10 percent disability evaluation for scarring of the left lower extremity is warranted as of February 13, 2009. To this extent the Veteran's claim is granted. However, the preponderance of the evidence is against the claim of entitlement to a disability evaluation in excess of 10 percent at any time during the pendency of this claim, and as such, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. This aspect of the Veteran's claim is denied. Earlier Effective Date Claims Finally, the Veteran contends that he is entitled to an effective date prior to February 13, 2009, for the grant of service connection for the residuals of a SFW injury to muscle group XI, and, that he is entitled to an effective date prior to February 13, 2009, for the assignment of a compensable 10 percent disability evaluation for his scarring of the left lower extremity. Specifically, the Veteran has argued that the proper effective date for both issues should be April 23, 1970. However, as outlined below, the preponderance of the evidence demonstrates that an effective date prior to February 13, 2009, is not warranted under the law for either disability. As such, the claims for earlier effective dates are not warranted. The Veteran originally filed his claim for service connection for the residuals of an infection to the left lower leg in March 1970. In August 1970, service connection was established for scarring of the left leg. A 0 percent disability evaluation was assigned and the Veteran did not appeal the assigned rating, rendering it final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If new and material evidence is received within one year of the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" that prevents an initial determination from becoming final. See 38 C.F.R. § 3.156(b). However, the record contains no new and material evidence received within one year of the August 1970 rating decision. An April 1971 hospitalization report was incorporated into the file, and this report does note a history of an infection to the left leg. However, this is not "new" in that it was already well-established at the time of the August 1970 rating decision. Therefore, the August 1970 rating decision is now final. It was not until February 13, 2009, that VA again received a formal claim from the Veteran seeking compensation for his SFW of the left lower extremity. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. While the evidence clearly demonstrates an injury to the left lower extremity during military service, it was not until February 2009 that VA received a claim (since the prior final decision of August 1970), and as such, an earlier effective date is not permitted. The Board has also considered whether there may be any other evidence of record that could qualify as an informal claim, prior to February 13, 2009. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record reflects no communication from the Veteran or his authorized representative regarding his left lower extremity, subsequent to August 1970, until February 13, 2009. The Board notes that a VA Form 10-7131 was associated with the record after the August 1970 rating decision in June 1974 and October 1984. However, these documents do not meet the requirements of an informal claim for compensation benefits since they were not submitted by the Veteran and they do not evidence an intent on the part of the Veteran to file a claim for compensation benefits. Therefore, there is nothing of record that could reasonably be construed as an informal claim for benefits prior to February 13, 2009. The Board also recognizes that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim for an increased evaluation. 38 C.F.R. § 3.157. However, the record does not reflect that the Veteran was hospitalized or examined as a result of his left lower extremity at any time prior to February 13, 2009. The Board recognizes that the Veteran believes he is entitled to an earlier effective date back to the original receipt of his claim. However, the law in this area is clear - the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Since the August 1970 rating decision is final, the effective date can be no earlier than the date of receipt of a formal or informal claim. There is nothing of record to qualify as such until the Veteran's statement of February 13, 2009. Since the preponderance of the evidence is against the claims, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claims of entitlement to effective dates prior to February 13, 2009, for the grant of service connection for the residuals of a SFW injury to muscle group XI and the establishment of a 10 percent disability evaluation for residual scarring of the left lower extremity, must be denied. ORDER Service connection for arthritis of the left hand, to include as due to an in-service shell fragment wound, is denied. A 10 percent disability evaluation for scarring of the left lower extremity due to the residuals of a shell fragment wound, as of February 13, 2009, is granted subject to the law and regulations governing the payment of monetary benefits. A disability evaluation in excess of 10 percent for scarring of the left lower extremity due to the residuals of a shell fragment wound is denied. The claim of entitlement to an effective date prior to February 13, 2009, for the grant of service connection for the residuals of a SFW to muscle group XI, is denied. The claim of entitlement to an effective date prior to February 13, 2009, for the assignment of a 10 percent disability evaluation for scarring of the left lower extremity due to a SFW, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs