Citation Nr: 1325142 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 08-18 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for a low back disability. 2. Entitlement to an increased rating in excess of 10 percent for scars of the thoracic area, prior to February 14, 2012. 3. Entitlement to an increased rating in excess of 20 percent for thoracic scars, to include a post lumbar fusion scar, and a post lipoma neck scar, from February 14, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from July 1995 to July 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran did not request a hearing before the Board. In the September 2007 rating decision, the RO denied the Veteran's claim for an increased rating in excess of 10 percent for service-connected scars of the thoracic area. Subsequently, in an August 2012 rating decision, the RO granted a single 20 percent evaluation encompassing the Veteran's thoracic scars, to include a post lumbar surgery scar, and a post lipoma excision neck scar, effective February 14, 2012. In that decision, the RO also granted a single separate noncompensable rating for rating for these scars, based on the presence of one or more linear scars. In March 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, seated at the RO (Travel Board hearing). A transcript has been procured and is of record. The issue of an increased rating in excess of 40 percent for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the increased rating period prior to October 23, 2008, the Veteran's scars of the thoracic area were painful upon examination, but were not deep and did not limit the function of the affected part of the body. 2. From October 23, 2008, the Veteran's scars, numbering nine in total, were painful to palpation. CONCLUSIONS OF LAW 1. For the period prior to October 23, 2008, the criteria for an increased rating in excess of 10 percent for scars of the thoracic area have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7819-7804 (2008). 2. For the period from October 23, 2008, the criteria for an increased rating of 30 percent, but no greater, for thoracic scars, to include a post lumbar fusion scar, and a post lipoma neck scar have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 3.326(a) (2012). At the March 2013 Travel Board hearing, the Veteran indicated that an increased rating of 30 percent for his scars would fully satisfy his claim regarding this issue. The Board notes that the determination below will fully grant the Veteran's claim for the increased rating period from October 23, 2008, as it will assign a 30 percent rating for that period. Because the determination below will also deny the Veteran's claim for an increased rating in excess of 10 percent for the period prior to October 23, 2008, the Board will proceed to discuss how VA satisfied the VCAA duties to notify and assist for that period. VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. In a claim for an increased rating, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of 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). VA satisfied its duty to notify the Veteran by issuing notice letters in August 2006 and February 2007. In these notice letters, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claims; the information and evidence that VA would seek to provide; and the information and evidence the Veteran was expected to provide, and the information regarding the assignment of ratings and effective dates required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. The evidence of record indicates that VA acquired the Veteran's VA and private treatment records to assist the Veteran with his claim. The Board also notes that VA provided the Veteran with VA medical examinations in October 2009 and February 2012 that were thorough and productive of medical findings regarding the severity of the Veteran's scars. Although both examinations were provided subsequent to October 23, 2008, as will be explained below, the Board finds that the evidence of record, combined with the findings in the VA medical examination reports, is sufficient to allow for the rating of the Veteran's scars for the period prior to October 23, 2008. As such, there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Regarding the March 2013 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues, and (2) suggesting the submission of evidence that may have been overlooked. Here, during the March 2013 Travel Board hearing, the undersigned Veterans Law Judge specifically noted the issue on appeal. Then, having heard the Veteran's testimony, so in response to it, the Veterans Law Judge sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding and, in turn, might tend to substantiate this claim. So the Veterans Law Judge complied with the requirements of Bryant and 38 C.F.R. § 3.103(c)(2) . In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Increased Rating Claims Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue (i.e., an increased rating claim), the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the period prior to February 4, 2012, the Veteran's thoracic scars were rated under 38 C.F.R. § 4.118, Diagnostic Code 7819-7804 (2008). Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). In this case, the RO noted that the Veteran's thoracic scars were benign skin neoplasms, to be rated according to the criteria at Diagnostic Code 7819. Diagnostic Code 7819 indicates that such neoplasms are to be rated under the criteria for disfigurement of the head, face, or neck; scars; or impairment of function. Under those criteria, the RO determined that the Veteran's thoracic scars would best be rated under Diagnostic Code 7804, the then-current criteria for evaluating painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7819-7804 (2008). The criteria for rating of skin disabilities, including scars, were revised effective on October 23, 2008. The revised criteria pertain to claims received on or after October 23, 2008. The Veteran filed his claim for an increased rating in August 2006; yet, pursuant to 38 C.F.R. § 4.118 (2012), a veteran who was rated under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008 can request review under those same Codes. If such request is made, VA will review the disability to determine if a higher rating is due under those Codes, but the effective date of any increased award will not be effective before October 23, 2008. 38 C.F.R. § 4.118 (2012). At the March 2013 Travel Board hearing, the Veteran specifically requested that his disability be rated under the revised Diagnostic Code 7804 (2012), which allows a 30 percent rating for more than five painful scars. Moreover, for the period from February 4, 2012, the RO assigned a collective 20 percent rating for the Veteran's thoracic scars and post lipoma neck scar under the current criteria listed at Diagnostic Code 7804. See id. Therefore, the Board will address both sets of criteria. The Board has considered all evidence of record as it bears on the question of an increased rating. See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. Increased Rating for Scars The Veteran essentially contends that his thoracic scars' symptomatology was of greater severity than that contemplated by the 10 percent rating assigned for the period prior to February 14, 2012 under the old criteria listed at Diagnostic Code 7819-7804. 38 C.F.R. § 4.118 (2008). The Veteran also contends that the symptomatology related to his thoracic scars, to include a post lumbar fusion scar, and his post lipoma neck scar, is of greater severity than the 20 percent rating assigned under the revised Diagnostic Code 7804 criteria during the period from February 14, 2012. 38 C.F.R. § 4.118 (2012). Specifically, for the entire increased rating period under appeal, the Veteran contends that his scars have caused pain and itching. In May 2006 VA treatment records, VA examiners reported removing six lipomas from the Veteran's back. Subsequently, in several lay statements, the Veteran reported he experienced itching and pain related to multiple scars of his posterior trunk, resulting from the May 2006 procedure, as well as previous lipoma excisions. In an October 2009 VA medical examination report, the Veteran reported having eight scars resulting from his multiple lipoma removal procedures. The Veteran indicated that the scars itched and that he used hydrocortisone one-percent cream for relief. The Veteran stated that he did not experience redness or inflammation of the scars, and that they were well-healed. The Veteran indicated that the scars displayed good texture and good adherence. The Veteran denied experiencing any keloid formation, scar elevation or depression, breakdowns, ulcerations, or hernias. Upon physical examination, the October 2009 VA examiner noted that the Veteran had multiple scars on the posterior chest area, to include a three-quarter inch horizontal scar, four one-inch horizontal scars, and two three-quarter inch to one-inch scars on the right posterior wall near the ribcage. The VA examiner noted that these scars were well-healed and slightly tender, and displayed good texture and adherence. The VA examiner noted finding no keloid formation, scar elevation or depression, breakdowns, ulcerations, or hernias. The Veteran examiner indicated that the scars were not red or inflamed. The VA examiner indicated that there were no atrophic changes, irregularities, scaliness, or soft tissue involvement. The VA examiner reported that the scars did not create any limitation of function or other functional impairment. After the examination, the October 2009 VA examiner diagnosed seven thoracic scars, residuals of excised lipomas, as well as an additional scar on the Veteran's neck, having the symptomatology. The VA examiner noted that the scars, themselves, created no residuals. In a February 2012 VA medical examination report, the Veteran indicated that his scars were itchy and painful, with the scar from his 2006 lumbar fusion operation being the most aggravating. The Veteran indicated that the itching from the scars would upset his concentration at the workplace. Upon examination, the February 2012 VA examiner reported finding nine scars on the posterior trunk, measuring from 11-centimeters in length to three centimeters in length. Prior to October 23, 2008 For the period prior to October 23, 2008, the Board finds that the Veteran's thoracic scars were not manifested by symptomatology more nearly approximating that required for an increased rating in excess of 10 percent under any appropriate Diagnostic Code. As noted above, the regulations regarding the rating of scars changed in October 23, 2008 and so the Board must rate the Veteran's scars from the period prior to October 23, 2008 according to the unrevised regulations. Yet, VA did not provide the Veteran with a VA medical examination to determine the severity of his scars in support of his claim for an increased rating until October 2009. Yet, the Veteran has contended during the entire increased rating period that his scars were manifested by consistent symptoms of pain and itchiness. The Board also notes that the Veteran has not indicated that any of the scars noted on the October 2009 VA medical examination report were not present on his body as of October 23, 2008. Therefore, the Board finds sufficient evidence to allow for rating the Veteran's scars for the period prior to October 23, 2008 by utilizing the Veteran's lay statements and the October 2009 VA medical examination report. Under the regulations in effect prior to October 23, 2008, the 10 percent rating then assigned for superficial and painful scars of the thoracic area was the maximum rating assignable under Diagnostic Code 7819-7804. 38 C.F.R. § 4.118 (2008). Therefore, the Board cannot assign a higher rating under that Diagnostic Code. From the evidence of record, the Board finds that other diagnostic codes utilized in rating scars prior to October 23, 2008 were not applicable in this case, as the Veteran's thoracic scars were not located on the face or neck (Diagnostic Code 7800), were not deep and did not cause limitation of motion in themselves (Diagnostic Codes 7801, 7805), were not unstable (Diagnostic Code 7803), and did not cover an area greater than 144 square inches (Diagnostic Code 7802). 38 C.F.R. § 4.118 (2008). For these reasons, the Board finds that the evidence of record did not support an increased rating in excess of the 10 percent rating assigned for the Veteran's thoracic scars for the period prior to October 23, 2008. Id. For the increased rating period prior to October 23, 2008, the Veteran's thoracic scars were not manifested by symptomatology more nearly approximating that required for a rating in excess of 10 percent. As the preponderance of the evidence is against any claim for a rating in excess of 10 percent for that period, the benefit of the doubt rule is not applicable for that aspect of the Veteran's appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). From October 23, 2008 For the period from October 23, 2008, the Veteran contends that his scars were of greater severity than that contemplated by the currently assigned ratings. The Board notes that the period in question includes the period from October 23, 2008 to February 13, 2012, when the Veteran's thoracic scars were rated as 10 percent disabling under the unrevised 38 C.F.R. § 4.118, Diagnostic Code 7819-7804 (2008), and the period from February 14, 2012, during which the Veteran's thoracic scars, to include a post lumbar fusion scar, and post lipoma neck scar were collectively rated as 20 percent disabling under the revised 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). After a review of the evidence of record, for the period from October 23, 2008, the Board finds that the Veteran's scars' symptomatology, including that of the thoracic scars and the neck scar, has more nearly approximated that required for a 30 percent rating under the revised Diagnostic Code 7804. 38 C.F.R. § 4.118 (2012). Under the current version of Diagnostic Code 7804, effective October 23, 2008, a 30 percent rating is to be assigned for five or more scars that are painful. As the evidence indicates that the Veteran has either eight or nine scars, and that such scars are painful, the Board finds that the Veteran's scars' symptomatology more nearly approximates that required for a 30 percent rating under the revised Diagnostic Code 7804. Id. At the March 2013 Travel Board hearing, the Veteran indicated that a 30 percent rating for his thoracic scars and neck scar would completely satisfy his appeal for an increased rating for his scars. As this decision is a full grant of the benefits sought on appeal as to this issue for the period dating back to October 23, 2008, the Board need not discuss the possibility of a higher rating for this period and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Extraschedular Ratings As stated above, at the March 2012 Board personal hearing, the Veteran indicated that a 30 percent rating for his scars would completely satisfy his claim for an increased rating. As this decision granted a 30 percent rating for the period from October 23, 2008, this Board decision is a full grant of the benefits sought on appeal as to this issue for that period, and the Board need not discuss extraschedular consideration for that period. The Board has considered whether referral for consideration of an extraschedular rating is warranted for the Veteran's scars for the period prior to October 23, 2008. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has 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 for completion of the third step, specifically a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, for the period prior to October 23, 2008, the Board finds that the symptomatology and impairment caused by the Veteran's thoracic scars was specifically contemplated by the schedular rating criteria in effect at the time (38 C.F.R. § 4.118, Diagnostic Code 7819-7804 (2008)), and no referral for extraschedular consideration is required. The schedular rating criteria for that Diagnostic Code specifically provided for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, for the increased rating period prior to October 23, 2008, the Veteran's scars were manifested by symptomatology more nearly approximating pain on palpation. The schedular rating criteria specifically provide for ratings based upon such symptomatology. As the schedular evaluation contemplated the disability and symptomatology related to the Veteran's thoracic scars for that particular period, the Board need not determine whether there are exceptional disability pictures that exhibit other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's scars during the period prior to October 23, 2008, the Board is not required to remand that issue to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER For the period prior to October 23, 2008, an increased rating in excess of 10 percent for scars of the thoracic area is denied. For the period from October 23, 2008, an increased rating of 30 percent, but no greater, for thoracic scars, to include a post lumbar fusion scar, and a post lipoma neck scar is granted. REMAND Review of the record indicates that the Veteran's last VA examination for his service-connected low back disability was in April 2011. Upon review, the Board finds that a more current examination is necessary to properly evaluate the severity of this condition. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his low back disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's low back should consist of all necessary testing. The examiner is asked to comment on the following: (a) Please specify the range of motion findings of the Veteran's thoracolumbar spine and the range of motion findings upon repetitive testing. If applicable, please specify: (i) the degree(s) at which pain begins, if any; (ii) any additional limitation of function upon repetitive testing; and (iii) any degree of additional limitation of motion upon repetitive testing. (b) Have there been any periods of incapacitating episodes in the past year, in which a physician has prescribed bed rest? If so, how often? Please identify the total duration of any incapacitating episodes in the past year. (c) Are there any neurological manifestations of the lumbar spine disability, including radiculopathy of any extremity or bladder/bowel/erectile dysfunction symptoms? If so, please identify. (d) Does the Veteran have ankylosis of the thoracolumbar spine or ankylosis of the entire spine? If so, is the anklylosis favorable or unfavorable? A complete explanation should be provided for any opinion expressed, and the foundation for all conclusions should be set forth. 2. After accomplishing any additional development deemed appropriate, readjudicate the claim remaining on appeal. The claim must be considered on both schedular and extraschedular bases. In adjudicating the claim, the possibility of separate ratings for radiculopathy must also be considered. If the benefits sought in connection with this claim remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs