Citation Nr: 1322859 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-23 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a disability of the right upper extremity, claimed as numbness/weakness, to include as a residual of service-connected lung cancer. 2. Entitlement to a compensable rating for thoracotomy scar of the right chest, post-operative residuals of a lobectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which granted service connection for chest numbness around a surgical scar assigning a noncompensable rating, under diagnostic code 7899-7805; and denying service connection for numbness of the right upper extremity. By rating action in May 2007 service connection for lobectomy scar (formerly chest numbness around a surgical scar) was increased from a noncompensable rating to a 10 percent rating from August 30, 2006, under diagnostic code 7804-5326. The issues were previously presented to the Board in March 2011 and September 2012 at which time they were remanded for additional development. In both cases the Board described the residual post-operative lobectomy scar as post-operative thoracotomy scar of the right chest. In a February 2013 rating decision, the Appeals Management Center (AMC) re-established the previous noncompensable rating for a service-connected lobectomy scar, status post surgery. In a June 2013 rating decision, the AMC granted a separate noncompensable rating for numbness around residual scar, right posterior post lobectomy. In May 2013, the Board determined that the reduction from 100 to 30 percent for residuals of lung cancer was proper. In addition it was determined that a rating in excess of 30 percent was not warranted. This decision is final and is no longer before the Board. In addition the Board remanded the issue of an increased compensable rating for a service-connected lobectomy scar, status post surgery. The Board notes the confusion caused by the various ratings derived from the Veteran's lobectomy procedure. The Board also observes that the Veteran has only one surgical scar for his lobectomy procedure. The first step in performing a lobectomy is to perform a thoracotomy incision. Through this surgical portal the lobectomy is performed. In other words there is no separate lobectomy incision or lobectomy scar. Thus, the Board finds that to provide separate ratings for thoracotomy scar residuals and lobectomy scar residuals would constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2012). Accordingly, separate ratings cannot be assigned for post-operative residuals of a thoracotomy scar of the right chest and post-operative residuals of a lobectomy scar of the right chest. The issues of post-operative thoracotomy scar of the right chest; and, post-operative lobectomy scar of the right chest, are combined into the single issue of a thoracotomy scar of the right chest, post operative residuals of a lobectomy. Regarding the separate 10 percent rating assigned for status post residuals of a lobectomy to include numbness around the residual surgical scar, right posterior trunk, under diagnostic code 7804-5326 analogous to a muscle hernia; and a separate noncompensable rating for numbness around residual scar, right posterior post lobectomy has been assigned. These ratings are combined into the single issue of status post residuals of a lobectomy to include numbness around the residual surgical scar, right posterior trunk under diagnostic code 5326. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. The Veteran's right upper extremity disorder did not have its onset in active service or manifest to a compensable degree within one year after discharge from active service and is not the result of a service-connected disease or injury or associated surgical treatment. 2. For the entire rating period on appeal, the service-connected thoracotomy scar of the right chest, post-operative residuals of a lobectomy was manifested by a deep surgical scar covering an area exceeding 6 square inches but less than 12 square inches. (Additional impairment of function associated with the lobectomy surgery resulting in right intercostal muscle and nerve damage, and other residuals of a lobectomy to include numbness around the residual surgical scar, right posterior trunk are separately rated under diagnostic code 5326.) CONCLUSIONS OF LAW 1. The criteria for service connection for a right upper extremity disability, to include as a residual of service-connected lung cancer have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). 2. For the entire rating appeal period, the criteria for a 10 percent disability evaluation, but no higher, for the service-connected thoracotomy scar of the right chest, PO residuals of a lobectomy, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). By letter dated in September 2006, the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The Veteran's increased rating claim for thoracotomy scar of the right chest, PO residuals of a lobectomy arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA as to this issue. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him/her in the procurement of service treatment 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board further observes that this case was remanded in March 2011, September 2012, and May 2013 in order to obtain outstanding treatment records and SSA determination records and afford the Veteran VA examinations. Thereafter, additional relevant treatment records and SSA determination records were associated with the claims file, and the Veteran was afforded the requested VA examinations. The Board has carefully reviewed such statements and concludes that no additional available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Also, the Veteran was afforded VA examinations, most recently in May 2013, to evaluate the severity of his right upper extremity disability and the thoracotomy scar of the right chest. The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the pertinent medical history, lay assertions and current complaints, and because it describes the right upper extremity disability and the thoracotomy scar of the right chest symptomatology in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his right thoracotomy scar symptoms have materially increased in severity since the most recent evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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). II. Legal Criteria Initially, the Board notes all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. a. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran asserts that he developed a disability of the right upper extremity, claimed as pain, limitation of motion, numbness, and weakness, to include as a residual of his service-connected lung cancer and surgical treatment for lung cancer. The Board recognizes the Veteran's contentions that he has disability of the right upper extremity. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It, however, would require medical or scientific expertise to say that disability of the right upper extremity was related to the Veteran's lung cancer or the surgical treatment he underwent for lung cancer. These are not matters that are subject to lay observation. There is no indication that the Veteran possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation. See Jandreau, 492 F.3d at 1377. In an October 2006 VA examination the Veteran reported numbness of the chest and restricted use of the right arm which he believed was due to his lung cancer. He reported right arm pain resulted in limitation of his range of motion. The pain was located in his right shoulder muscle when he raised his right arm, and performed throwing or lifting motions. The examiner noted pain with shoulder motion in the deltoid muscles with abduction and flexion of the right upper extremity; and in the latismus muscle with extension of the right upper extremity. There was no pain in the triceps, biceps, and pectoralis muscles. The diagnosis was nervous system complications of surgical care, thoracotomy, trauma to segmental nerves with neuralgias and numbness. The examiner opined that right arm restriction was not new and was present in a May 2006 VA examination with other symptoms which were likely related to his lung cancer or treatment. The right arm pain and resulting restriction of motion were most likely caused by or as a result of surgical treatment. The right arm numbness and pain was deferred for a VA orthopedics examination by rating action in November 2006. In a December 2006 VA orthopedics examination, inspection of the Veteran's right upper extremity revealed palpable tenderness at the insertion of the right deltoid muscle into the right humerus. The shoulder muscle girth was normal. There was no atrophy or asymmetry of the muscles around the shoulder girdle. The range of motion (ROM) of the right shoulder was flexion to 100 degrees and extension to 50 degrees without evidence of pain. X-rays of the right arm revealed an AC joint separation. The diagnosis was right arm strain. This was not related to or caused by the thoracotomy for which he was exposed to during his diagnosis and treatment of lung cancer. The examiner noted that the Veteran's right shoulder pain was in the sub-deltoid region. There was no loss of sensation to the right upper extremity. The Veteran had pain only in the sub-deltoid region. This was not related to surgery. The examiner noted that the Veteran's right shoulder was not hypoesthetic. He was hypoesthetic only in the proximity of the right thoracotomy scar through a decreased sensation along the thoracotomy scar as described. There was no pain to palpation of the T4-T5 region anteriorly. Right arm muscle function, vascular structure, peripheral pulses, strength, vibration, and sensations were completely normal. By rating action in January 2007 service connection for chest numbness around the surgical scar was granted and a noncompensable rating assigned from August 30, 2006, under diagnostic code 7899-7805. Service connection for the right arm disorder was denied. By rating action in May 2007 service connection for right arm numbness remained denied. Service connection for lobectomy scar (formerly chest numbness around a surgical scar) was increased from a noncompensable rating to a 10 percent rating from August 30, 2006, under diagnostic code 7804-5326. In a May 2011 VA examination report the Veteran reported symptoms of numbness and restricted use of the right arm after undergoing a lobectomy. The right shoulder hurt from time to time. He could not say what made it worse. There was no history of trauma or surgery to the right arm. He had a neoplasm of the lungs in 2004, a right upper lobectomy, and one dose of chemotherapy. The examiner noted no deformity, giving way, instability, stiffness, incoordination, decreased speed, dislocation, subluxation, locking, effusion, or inflammation. The Veteran reported mild pain and weakness with flare-ups which lasted for hours. There were no constant symptoms of arthritis, or incapacitating episodes. The Veteran noted that he developed numbness in the 4th and 5th right fingers. The examiner noted that in November 2010 the Veteran had a soft tissue mass excised from his right lateral elbow which was thought to be contributing to right ulnar neuropathy. This was noted to be not related to right arm pain. The range of motion of the right arm was flexion 0-100 degrees, abduction 0-140 degrees, right internal rotation 0-90 degrees, and right external rotation 0-85 degrees with no pain on motion. There was no objective evidence of pain following repetition, and no additional limitations following three repetitions. There was no ankylosis. X-rays revealed no fractures, anterior dislocation, or obvious posterior dislocation. There was mild acromioclavicular separation noted. The Veteran was noted to have retired in 1996 due to age and eligibility. In an October 2012 VA examination report the examiner noted that the Veteran had several pathologies which would involve his right arm. The examiner noted a diagnosis of severe canal stenosis at C6-C7 but no frank cord compression as well as multi-level degenerative changes. Based on these findings the examiner found that the radiculopathies would be related to degenerative joint disease (DJD) and degenerative disc disease (DDD) of the cervical spine. The Veteran also had excisions of infracted right flexorcarpi radialis muscle belly in November 2010. The cause was ischemia and was unrelated to the Veteran's lung surgery. This loss of muscle would affect grip and pronation of the right hand. The Veteran was subsequently assessed as having ulnar nerve compression of the right elbow. This also was not related to the lung cancer or the subsequent lung cancer surgery. The ulnar neuropathy would cause decreased sensation in the palmar and dorsum of the 4th and 5th fingers as well as in the right hand over the 4th and 5th metacarpals. This can also cause a weakness of the intrinsic muscles of the hand as well as loss of flexion. The Veteran also had excision of inflamed synovium during debridement of the right lateral elbow in April 2011. Although there was no apparent neurologic sequelae in this surgery, the examiner noted that he mentioned it to reinforce the fact that any sensory or motor symptoms below the elbow had nothing to do with the lung cancer or surgical treatment for lung cancer. Service connection has been established for the Veteran's lung cancer and for the post-operative thoracotomy scar of the right chest. In addition, service connection is established for status post residuals of a lobectomy to include numbness around the residual surgical scar, right posterior trunk under diagnostic code 5326. This includes resulting right intercostal muscle injury and nerve damage from the thoracotomy. The Veteran contends that his lung cancer and the surgical treatment for lung cancer has caused and/or aggravated a right arm disability. The service treatment records are absent for any complaint, treatment, or diagnosis of a right arm disorder, and the Veteran does not contend that there was an onset in active service. Indeed, evidence indicates that a right arm disorder was first diagnosed in 2004, which was years after his discharge from active service. In the December 2006 VA examination X-rays of the right arm revealed an acromioclavicular joint separation. The diagnosis was right arm strain which was not related to or caused by the thoracotomy he underwent for surgical treatment of lung cancer. In the May 2011 VA examination the examiner noted that several conditions of the right upper extremity which the Veteran had been treated for. These included the excision in November 2010 of a soft tissue mass from his right lateral elbow which was thought to be contributing to right ulnar neuropathy. The range of motion of the right arm was performed without pain on motion, and there was no objective evidence of pain or additional limitations following 3 repetitions. X-rays revealed no fractures, anterior dislocation, or obvious posterior dislocation. Mild acromioclavicular separation was noted. In the October 2012 VA examination report the examiner noted several pathologies which involved the Veteran's right arm. The examiner noted a diagnosis of severe canal stenosis at C6-C7 as well as multi-level degenerative changes. Based on these findings the examiner found that radiculopaties would be related to DJD and DDD of the cervical spine. The Veteran also had excisions of infracted right flexorcarpi radialis muscle belly in November 2010. The cause was ischemia and was unrelated to the Veteran's lung surgery. This loss of muscle would affect grip and pronation of the right hand. The Veteran was subsequently assessed with ulnar nerve compression right elbow. This also was not related to the lung cancer or the subsequent lung cancer surgery. The ulnar neuropathy would cause decreased sensation in the palmar and dorsum of the 4th and 5th fingers as well as in the right hand over the 4th and 5th metacarpals. This was presented by the Veteran and can also cause a weakness of the intrinsic muscles of the hand as well as loss of flexion. The Veteran also had an excision of inflamed synovium during debridement of the right lateral elbow in April 2011. Although there were no apparent neuro sequelae in this surgery, the examiner noted that he mentioned it to reinforce the fact that any sensory or motor symptoms below the elbow have nothing to do with the lung cancer or surgical treatment for lung cancer. In a May 2013 VA examination the examiner reviewed the claims file and medical records. He noted that a review of the 2008 VAMC treatment records and private rheumatology reports indicated that the right upper extremity pain was felt to be due to the Veteran's rheumatoid arthritis. A 2009 private rheumatology report indicated the right upper extremity ROM was improving. The May 2011 VA examination revealed nearly symmetrical bilateral ROMs. The examiner noted a history of thoracotomy related serratus muscle injury with no residuals on examination. He noted that the Veteran had suffered a deep penetrating muscle injury as a result of the surgery. Immediately after surgery the Veteran reported right upper extremity joint pain with raising the arm, or extending the arm. The right shoulder improved over time. When asked about current residuals related to the surgical scar or to the surgery the conversation recurrently turned to the right forearm and right hand issues which were not related to the right upper lobectomy surgery. There were no current symptoms attributed to serratus muscle injury. The examiner noted the Veteran had initially suffered right side group I muscle injury-extrinsic muscle of shoulder girdle, trapezius, levator, scapulae, serratus magnum. The examiner noted the Veteran removed and redressed his t-shirt with overhead motion as well as light coat with a reaching around back motion smoothly and without difficulty at the beginning and close of examination. Adduction/abduction maneuvers of scapula were performed as well as bench pressing to wall and abduction and adduction maneuvers of the bilateral shoulders. There was no visual or palpable defect of the scapula or infrascapular musculature noted. Range of motion was flexion to 160 degrees and abduction to 170 degrees bilaterally. There was no change in range of motion with repetition and no pain or fatigue noted. The examiner noted that the surgical approach utilized for a lobectomy typically avoided the lattismus dorsi but interrupted the serratus anterior and intercostal muscles. The serratus is sutured at the surgical closure. Pain and a prolonged recuperation with some limitations of scapula movement are not uncommon. Although some (typically asymptomatic) scapula movement limitation is not uncommon following this surgery. On examination the Veteran had no evidence of a residual muscle defect, scapula immobility or winging, or shoulder joint affect compared to the opposite side. The range of motion of the shoulders demonstrated on examination are most likely normal for this Veteran due to age and unrelated rheumatoid arthritis. "Hence it is most likely that the Veteran acquired a muscle injury during the surgery approach to his RUL lobectomy, there is no residual of that muscle injury identified on examination. There are no functional limitations resulting from any identified muscle injury found on examination." The associated reports did not find that there was any etiological relationship between the Veteran's right upper extremity conditions and his lung cancer and surgical treatment. Indeed, the VA examiners stated that the Veteran had several conditions which would directly affect his right upper extremity including DDD and DJD of the cervical spine, excisions of infracted right flexorcarpi radialis muscle belly, excision of inflamed synovium, right elbow, and ulnar nerve compression right elbow. Essentially, the examiners noted that the contended relationship between a right upper arm disability and lung cancer and the surgical treatment for lung cancer is based on the Veteran's belief that surgical treatment for lung cancer caused or aggravated his right arm disorder. The examiners noted that his lung cancer or the subsequent surgical intervention did not cause a right arm disorder. The medical evidence and opinions are based on the examiners' medical knowledge, and is a subject on which the examiners, as physicians are competent to address. With regard to the Veteran's contentions, the Board notes that there were some recognized intercostals muscles and nerve damage resulting from the thoracotomy surgical scar which may affect the motion of the right arm dud to the surgical scarring around the thoracotomy and this has been awarded a separate compensable rating. There is no other medical opinion, private or VA, which is supportive of the Veteran's contention that he incurred a separate right arm disorder secondary to his lung cancer and surgical treatment. Veterans are competent to report on what comes to them through their senses, and in some cases, they are competent to report on simple medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With respect to something as complicated as a nexus opinion addressing the potential relationship between lung cancer and surgical treatment for lung cancer and the onset of a right arm disorder, however, the Board must conclude that the Veteran lacks the requisite medical credentials to opine as to something so complicated. Id. The Veteran is not competent, nor is he credible, in his assertion of a relationship (either causal or aggravating) between his lung cancer and surgical treatment for lung cancer and the onset of a right upper extremity disorder, and the competent and credible evidence is against the claim. Accordingly, the Board must find that the preponderance of the evidence does not support the contended relationship, and the claim will be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2002); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). b. Increased Disability Rating for thoracotomy scar of the right chest, PO residuals of a lobectomy. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 126-27 (1999). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection from August 30, 2006, to the present time. The Board's adjudication of this claim accordingly satisfies the requirements of Fenderson. 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 a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, because such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, citing Brady v. Brown, 4 Vet. App. 203 (1993). During the pendency of this appeal, the criteria for rating skin disabilities were revised, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008, unless the Veteran specifically requests consideration of the revised regulations. Although there was no specific request in this case, the RO nonetheless considered the revised regulations. As such, the Board will also consider the newest criteria, as well as the criteria in effect prior to, and as of, August 30, 2006. Prior to October 23, 2008, the rating schedule read as follows: Under Diagnostic Code 7801, Scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7801 (2006). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note 2. Scars, other than head, face, or neck, that are superficial and that do not cause limited motion covering an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7802 (2006). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note 2. Diagnostic Code 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803 (2006). Note 1 to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to Diagnostic Code 7803 provides that a superficial scar is one not associated with underlying soft tissue damage. Scars which are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7804 (2006). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. Other scars are rated based upon limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Beginning on October 23, 2008, the rating schedule reads as follows: Beginning October 23, 2008, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are rated under Diagnostic Code 7801. For these scars, area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrant a 20 percent rating; area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. A deep scar is one associated with underlying soft tissue damage. 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, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity, a separate evaluation is assigned based on the total area of the qualifying scars that affect the anterior portion of the trunk, and a separate evaluation is assigned 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. Separate evaluations are combined under § 4.25. 38 C.F.R. §4.118, Diagnostic Code 7801. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation, which is the maximum elevation under this code. Note (1) under that code provides a superficial scar is one not associated with underlying soft tissue damage. Note (2) under that code provides that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118 (2012). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation, three or four scars that are unstable or painful warrant a 20 percent evaluation, and five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118 (2012). Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 require the evaluation of 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 (2012). In an October 2006 VA examination the Veteran reported pain in a large area of the right chest including the skin surrounding his thoracotomy surgical scar felt numb. Coughing was painful in the region of the right chest wall scar. He had pain and limitation in ROM of the right arm due to pain located in his shoulder muscle when he raises his right arm or performs throwing or lifting motions. The examiner noted that the skin was normal without ecchymoses, petechias, flaking, or tumefactin. The diagnosis was nervous system complications of surgical care, thoracotomy, trauma to segmental nerves with neuralgias and numbness. The examiner opined that chest numbness and arm restriction were likely related to his lung cancer or treatment. The chest numbness and pain were caused by or a result of the surgical treatment from lung cancer. The right arm pain and resulting restricted limitation of motion are most likely caused by or as a result of surgical treat. In a December 2006 VA examination the examiner noted that the Veteran had a right infrascapular scar measuring 23 cm. curvilinear and presents under the scapula near the midthoracic region to the posterior axillary line. It was also along the T4-5 nerve dermatome distribution. There was decreased sensation along the course of the scar 1 cm on each side of the scar. The remainder of the sensory distribution of the skin of the posterior and lateral thorax was normal. The Veteran had decreased sensation in the right thoracotomy scar. The Veteran had pain in the right nipple, and right pectoralis as a result of trauma during surgery to intercostals nerves serving T4-T5 distribution. He was hypoesthetic only in distribution of proximity of right thoracotomy scar with decreased sensation along the thoracotomy scar as described. In a May 2012 VA examination the examiner noted a surgical scar of the trunk, posterior surface, curved under the lower border of the right scapula. There was no breakdown over the scar and no reported pain. The maximum width was 0.3 cm and the maximum length was 22.0 cm. The scar was not painful and had no significant skin breakdown. There was no inflammation, edema, or keloid formation. The scar was deep but had no other disabling effects. At the October 2012 VA examination the examiner reviewed the claims file and medical records. The examiner noted several pathologies related to the right upper extremity including DDD and DJD of the cervical spine; excisions of infracted right flexorcarpi radialis muscle belly; ulnar nerve compression, right elbow; and, excision of inflamed synovium during debridement of the right lateral elbow. None of these were related to the lung cancer or the subsequent lung cancer surgery. The ulnar neuropathy would cause decreased sensation in the palmar and dorsum of the 4th and 5th fingers as well as in the hand over the 4th and 5th metacarpals. This also can cause a weakness of the intrinsic muscles of the hand as well as loss of flexion. In a May 2013 VA examination the examiner reviewed the claims file and medical records. He noted a history of thoracotomy related serratus muscle injury with no residuals on examination. He noted that the Veteran had suffered a deep penetrating muscle injury as a result of the surgery. He noted that the surgical approach utilized for a lobectomy typically avoids the lattismus dorsi but interrupts the serratus anterior and intercostals muscles. The serratus is sutured at the surgical closure. The examiner noted a residual incision scar of right upper lobectomy surgery. There was no report of pain of the scar elicited on examination. The Veteran noted residual numbness immediately surrounding the distal scar post surgery which has never subsided. No other symptoms or limitations related to the surgery were noted. On examination there was decreased monofilament sensation reported in an area about 2 cm. wide adjoining and superior to the scar from approximately the 15th to the 20th cm. when beginning from the back. The scar measured scar 24 cm. long by 2 cm. wide (48 cm. square). It was not painful, abnormal, or unstable, and did not adhere to the underlying tissue. It was not hypopigmented or hyperpigmented, indurable, or inflexible and there was no tissue loss. There was no functional limitation resulting from the surgical scar on examination except for the approximate 2 cm. x 5 cm. sensory loss noted which was most likely attributed to interruption of an unnamed cutaneous nerve branch by the thoracotomy incision, a mild incomplete paralysis of unnamed cutaneous sensory nerve branch. The Veteran's thoracotomy scar of the right chest, post-operative residuals of a lobectomy may be rated under the criteria for DC 7801 for scars that are deep (meaning there is underlying soft tissue loss or damage), or cause limitation of motion. Under the criteria for DC 7801(2006 or 2012), scars that are deep (meaning there is underlying soft tissue loss or damage), or cause limitation of motion, and exceed 6 square inches (39 sq. cm.) warrants a 10 percent rating. In the May 2012 VA examination the examiner noted the surgical scar of the trunk, had a maximum width of 0.3 cm and the maximum length was 22.0 cm. or 6.6 sq. cm. In the December 2006 VA examination the examiner noted the scar was a right infrascapular scar measuring 23 cm. curvilinear and there was a decreased sensation along the course of the scar 1 cm on each side of the scar. (23 cm x 2 cm. or 46 sq. cm.). Likewise in the May 2013 VA examination a decreased monofilament sensation was reported in an area about 2 cm. wide adjoining and superior to the scar from approximately the 15th to the 20th cm. when beginning from the back. The scar was measured as 24 cm. long by 2 cm. wide (48 sq. cm.). In this case, the Veteran's scar has been noted to be a deep surgical scar. Based on the December 2006 VA examination report, the Veteran's thoracotomy scar is approximately 23 centimeters by 2 centimeters. Based on the May 2013 VA examination, the Veteran's thoracotomy scar measures 24 cm. long by 2 cm. wide (48 sq. cm.). Thus, the Veteran's scar is shown to warrant a 10 percent rating under DC 7801. The Veteran's thoracotomy scar of the right chest, post-operative residuals of a lobectomy may not be rated under the criteria for DC 7802 or 7804 (2006, 2012) or DC 7803 (2006), as these ratings are applicable to superficial scars and the scar is not tender or painful on palpation. The Veteran's thoracotomy scar of the right chest, post-operative residuals of a lobectomy may be rated under the criteria for DC 7805 (2006, 2012) for scars, other. This code is rated under limitation of function of the affected part. There is, however, no limitation of function of the affected part noted, the Veteran's right upper torso. The Board finds that a 10 percent disability evaluation is warranted throughout the appeal period for the thoracotomy scar of the right chest, post-operative residuals of a lobectomy under DC 7801 as the Veteran's scar is deep and involve an area of at least 6 square inches (39 cm.) but less than 12 square inches (77 cm.). 38 C.F.R. §§ 4.3, 4.7. The Board further finds that a higher rating than 10 percent is not warranted for any period. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Veteran, however, is not entitled to a higher rating for his thoracotomy scar under any other neurological, orthopedic, muscular or skin diagnostic code. Additionally, the Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. In evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Extra-schedular Consideration Finally, the Board finds that the Veteran's residual scars do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b) (1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's thoracotomy scar is adequately contemplated by the applicable diagnostic criteria. The criteria provides for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. Moreover, the VA examiners have established that the scar does not result in significant occupational or functional impairment. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. (CONTINUED ON NEXT PAGE) ORDER Service connection for a right upper extremity disorder, to include as secondary to a service-connected disability, is denied. A 10 percent evaluation for thoracotomy scar of the right chest, post-operative residuals of a lobectomy for the entire appeal period is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs