Citation Nr: 1322725 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-15 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for left foot ulcer, to include as secondary to a service-connected left ankle scar. 2. Entitlement to a compensable rating for a left ankle scar. 3. Entitlement to a rating in excess of 10 percent for residuals of a left ankle fracture. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1963 to August 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for residuals of a left ankle fracture, rated 10 percent and (separately) for a left ankle scar, rated 0 percent, effective December 18, 2007, and denied service connection for a left foot ulcer. The matters of the rating for residuals of a left ankle fracture and service connection for a left foot ulcer are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT At no time during the appeal period is the Veteran's left ankle scar shown to have been deep and nonlinear with an area of at least 6 square inches (39 sq. cm) or encompassing an area of 144 square inches (929 sq. cm) or greater; the scar is not shown to be painful, unstable, or to cause any limitation of function. CONCLUSION OF LAW A compensable rating for a left ankle scar is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.118, Diagnostic Codes (Codes) 7801-7805. REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A March 2009 statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in April 2008 and April 2010. The Board finds that the reports from these examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). They contain the specific clinical findings and informed discussion of the pertinent history and features of the disability needed for proper consideration of the claim. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service treatment records (STRs) reflect that the Veteran sustained a fracture and dislocation of the left ankle. A July 1964 record notes that a "split thickness skin graft from the left thigh was performed to the injured area of the left ankle...with satisfactory subsequent healing." VA treatment records are otherwise silent for any complaints or findings regarding the left ankle scar. On April 2008 VA examination, the Veteran reported tightness and aching at the left ankle scar when he has swelling. He denied any problem with recurrent infection in the area of the skin graft. On physical examination, the Veteran had a 16 centimeter (cm) by 2 cm (at the widest part) left ankle skin graft scar extending from the posteromedial ankle to the lateral ankle. There was no tenderness on palpation or adherence to underlying tissue. The scar did not result in limitation of motion or loss of function and there was no skin ulceration or breakdown over the scar. Underlying soft tissue damage was noted. On April 2010 VA examination, the examiner noted there was no skin breakdown over the left ankle scar and no reports of pain (no complaints/symptoms relative to this scar). The scar measured 5 cm (maximum length) by 5 cm (at the widest part) and was noted to have an abnormal texture; anterior scar, shiny texture. An examination revealed a superficial scar, with no pain, no signs of skin breakdown, no inflammation, no edema, and no keloid formation. Further, there was no hypo or hyper pigmentation and the skin is not indurated or inflexible. The contour is not elevated or depressed, is not adherent to underlying tissue, and has no other disabling effects. Legal Criteria and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as there is no indication (in the factual evidence of record) that at any time during the appeal period manifestations of the Veteran's left ankle scar varied, warranting a higher rating, staged ratings are not indicated. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Scars other than on the head, face, or neck are rated under the criteria in 38 C.F.R. § 4.118, (for rating skin disorders) Codes 7801-7805. Those criteria were revised effective October 23, 2008 and apply to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The Veteran's claim for an increased rating for left ankle scar arises from a claim he filed in December 2007. Although the implementing regulation for the new rating criteria provides that these revisions apply only to applications for benefits received by VA on or after October 23, 2008, a June 2010 SSOC (supplemental statement of the case) applied the new criteria when reajudicating the Veteran's claim. Therefore, the Board will also consider whether increased ratings are warranted under any applicable prior or [from their effective date] revised criteria. Under the criteria in effect prior to October 23, 2008, Code 7801 provides for ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 40 percent disabling. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Code 7802 provides a maximum 10 percent rating for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater. Code 7803 provides a maximum 10 percent rating for superficial unstable scars. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Code 7804 provides a maximum 10 percent rating for superficial scars that are painful on examination. Note (2) under Codes 7802 and 7803 and Note (1) under Code 7804 provide that a superficial scar is one not associated with underlying tissue damage. Code 7805 provides that other scars are to be rated on limitation of function of the affected part. 38 C.F.R. § 4.118. Under the revised criteria effective October 23, 2008, Code 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent disabling. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent disabling. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent disabling. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent disabling. 38 C.F.R. § 4.118 (effective October 23, 2008). Note (1) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. The revised criteria eliminated Code 7803. Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are painful or unstable. Note (1) provides that an unstable scar is where, for any reason, there is frequent loss of covering of skin over the scar. Under Code 7805, scars are evaluated for any disabling effects not considered in a rating under Codes 7800 to 7804 under an appropriate other Code. The Veteran's left ankle scar has been rated 0 percent under Code 7805, effective December 18, 2007. 38 C.F.R. § 4.118. The Board has considered whether there is any schedular basis for granting a compensable rating for the Veteran's service-connected left ankle scar, but has found none. In particular, under the criteria in effect prior to October 23, 2008, while there is evidence of a deep scar (as the April 2008 examiner found underlying tissue damage), such scar is not shown to cause motion limitation, and has (at most) an area of 32 square centimeters. There is no evidence that the scar was unstable or painful on examination, or that is caused any limitation of function. Therefore a compensable rating under the criteria in effect prior to October 23, 2008 would be inappropriate. Under the revised criteria, the scar notably is less than 39 square centimeters in area. The April 2010 examiner specifically noted it had no disabling effects. The Board acknowledges the Veteran's contentions that his scar is deep, and that it has no elasticity, causes poor circulation, and involves nerve damage; however, these contentions are not supported by the examination findings. On April 2010 examination, the Veteran did not report scar pain (and the examiner noted no complaints or symptoms related to the scar). Accordingly, a compensable rating under the revised criteria is also not appropriate. The Board has also considered whether referral of this matter to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b) is indicated. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). It is not alleged that the Veteran's left ankle scar causes any impairment of function not encompassed by the schedular criteria. Accordingly, referral of this case for extra-schedular consideration is not in order. Finally, as the Veteran is retired due to psychiatric impairment and has not alleged unemployability due to his left ankle scar disability, the matter of entitlement to a total rating based on individual unemployability is not raised in the context of this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A compensable rating for a left ankle scar is denied. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5013A, 5106, 5107, 5126 and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to these claims. See 38 C.F.R. § 3.159. The Veteran claims that his left foot ulcer is due to his left ankle scar, which restricts circulation to the foot. See February 2008 statement. It is not shown or alleged that a left foot ulcer was manifested in, or is directly related to, the Veteran's service. The Veteran's theory of entitlement is one of secondary service connection. The question of whether or not a service-connected disability that resulted from traumatic injury to a joint in service is a causative factor for a foot ulcer is one that is inherently medical in nature. On April 2008 VA examination, diabetic foot ulcer was diagnosed. The examiner opined that the Veteran's left foot ulcer was not caused by the (left ankle) scar or any circulatory restrictions related to the scar. The examiner noted that vascular studies were obtained and the Veteran does not have any evidence of vascular compromise. Secondary service connection is warranted for a disability that was caused or aggravated by a service-connected disability; any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability may be service connected. Governing law/caselaw provide that when adjudicating a secondary service connection claim VA must address the aggravation aspect of such claim. Furthermore, adjudicators may not rely on their own medical knowledge. Because the April 2008 examiner did not address whether the Veteran's service-connected left ankle scar has aggravated his left foot ulcer, the examination report (nexus opinion) is inadequate for rating purposes; a remand to secure a supplemental medical opinion in the matter is necessary. Regarding the residuals of a left ankle fracture, the Veteran was last afforded a VA examination in March 2008. He asserts that the disability has worsened. In light of this allegation and given the length of the intervening period, another VA examination is indicated. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the Veteran to be examined by an appropriate physician to determine the current severity of his residuals of his left ankle fracture and whether or not there is a nexus between his left foot ulcer and his service connected ankle disabilities. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Regarding the ankle fracture, all findings should be described in detail (and should include range of motion studies, to include notation of any additional limitations due to factors such as pain, use, etc.) The examiner should also provide a medical opinion regarding a nexus between the Veteran's left foot ulcer and his service-connected left ankle disabilities, and specifically whether or not the left foot ulcer was caused or aggravated by the service-connected left ankle disabilities. The examiner should provide an opinion that responds to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left foot ulcer was either caused or aggravated by (increased in severity due to) his service-connected left ankle disabilities? If the opinion is to the effect that the left ankle scar did not cause, but aggravated, the left foot ulcer, the examiner should identify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation (including as due to related gait disturbance). If the left foot ulcer is determined to not be related to the service connected disabilities please comment on the possible etiological factors for the ulcer. The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature, as deemed indicated. 2. The RO should then review the record and readjudicate the claims remaining on appeal. If either remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs