Citation Nr: 1325678
Decision Date: 08/14/13	Archive Date: 09/24/13

DOCKET NO.  10-04 766	)        DATE AUG 14 2013

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana

THE ISSUE 

Entitlement to an initial compensable rating for a left upper arm scar.

REPRESENTATION 

Appellant represented by:   Disabled American Veterans

ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel

INTRODUCTION

The Veteran served in the Army National Guard from September 2007 through November 2008. His service included active duty training from September 2007 to February 2008 and a period of active duty from April to November 2008.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the RO that granted service connection for a scar of the left upper arm and assigned a noncompensable disability rating, effective from May 8, 2008.

FINDING OF FACT

Since service connection became effective May 8, 2008, the Veteran's superficial left upper arm scar has been manifested by tenderness to touch.

CONCLUSION OF LAW

The criteria for an initial 10 percent rating, but not higher, for a left upper arm scar have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, Diagnostic Codes 7804, 7805 (2007) (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

VA 's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2012).

-2-

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice should generally be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). May field v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, a delay in timing is 'cured' and therefore harmless when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through the issuance of an SOC or SSOC) after the claimant has had an opportunity to submit additional evidence. Prickett v. Nicholson, 20 Vet. App. 370 (2006).

The appeal of the evaluations assigned the Veteran's scar stems from a granted claim of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of these five elements in initial rating cases.

Here, prior to the initial rating decision in this matter, a December 2008 letter informed the Veteran of all five elements of service connection, including the degree of disability element, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence. Thus, the letter satisfied all notice elements required under the VCAA.

Moreover, in initial rating cases, where service connection has been granted and

-3-

initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the 'downstream elements' of the degree of disability and effective date assigned. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). In this case, neither the Veteran nor his representative has alleged such prejudice. Therefore, the duty to notify has been satisfied.

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

Here, the Veteran's service treatment records have been obtained and associated with the claims file. He has not reported receiving any post-service treatment for his scar. The Veteran has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. Thus, the duty to assist has been satisfied with respect to obtaining relevant records on the Veteran's behalf. See 38 C.F.R. § 3.159(c).

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2012). In addition, where the evidence of record does not reflect the current state of the claimants disability and such is relevant to the claim, a new VA examination must be conducted. See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589(1991).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the

-4-

examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id.

Here, VA examinations of the Veteran's scar were performed in February 2009 and August 2009. The examinations are adequate for rating purposes, as the examiners examined the Veteran and described his scar in sufficient detail to enable the Board to make a fully informed decision on this claim. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no significant inconsistencies or ambiguities in the examination reports, and the claimant has not challenged their adequacy or thoroughness, or the competency of the examiner. Although the claims file was not made available to either examiner for review, that did not compromise the findings of the VA examiners. During the VA examinations, the Veteran acknowledged that since service connection became effective in May 2008, he had not received any treatment for his surgical scar. Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met.

In sum, VA's duty to notify and assist under the VCAA has been satisfied, he Veteran has had ample opportunity to participate in the development of his claim. Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the 'essential fairness of the adjudication,' and no such defect has been shown. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See

-5-

Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the 'rule of prejudicial error' requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). 

Accordingly, the Board may proceed with appellate review.

Higher Rating

The Veteran contends that the initial compensable rating assigned for his service-connected left upper arm scar does not adequately reflect the level of impairment caused by that disorder. Therefore, he maintains that an increased rating is warranted.

Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Generally, the relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed until VA makes a final decision on the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012). See Hart, supra.

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.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present

-6-

level of disability. Francisco v. Brown, 1 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (When service connection is granted and an initial rating award is at issue (as in this case), separate ratings can be assigned for separate periods from the time service connection became effective.). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Scars (other than those involving the head, face, or neck) are rated in accordance with 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Scars that are deep or that cause limited motion warrant the following ratings: 10 percent for an area or areas exceeding 6 square inches (39 sq. cm.); 20 percent for area or areas exceeding 12 square inches (77 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (2).

A 10 percent rating is warranted for scars (other than those on the head, face, or neck) that are superficial and that do not cause limited motion, provided that they cover an area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7803, Note (2).

A 10 percent rating is also warranted for scars which are superficial and unstable or painful on examination. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804. 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, DC 7803, Note (1).

Other scars are rated base on the limitation of function of the affected part. 38 C.F.R. §4.118, DC 7805.

In 2008, VA revised its regulations for rating scars. Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54708 (2008) (codified as revised at

-7-

38 C.F.R. § 4.118, Diagnostic Codes 7801 - 7805 (2012)). The only revision potentially applicable to the Veteran's claim affects 38 C.F.R. § 4.118, Diagnostic Code 7805. Whereas Diagnostic Code 7805 used to apply only to limitation of function of the affected part, the revisions broaden that scope, stating that disabling effect(s) of scars not considered in a rating under diagnostic codes 7800-04, are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

The revisions to rating scars are applicable only claims for benefits received by VA on or after October 23, 2008. Nevertheless, a veteran who VA rated under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008 can request review under diagnostic codes 7800, 7801, 7802, 7804, and 7805. Here, the Veteran submitted his claim in December 2008 (after October 23, 2008); however, service connection was awarded effective from May 8, 2008 (prior to October 23, 2008). Therefore, the Board will review the Veteran's disability rating to determine whether he may be entitled to a higher disability rating under any applicable revisions.

A review of the evidence, including the reports of the February and August 2009 VA examinations, discloses that the surgical scar on the Veteran's left upper arm is 9 1/4 inches or 23 cm long and 1/2 inch or 1 l/4 cms wide. It is superficial in nature. Although the Veteran reports that the scar is painful, both VA examiners were unable to elicit objective evidence of pain to palpation. The scar is stable and there is no associated heat, edema, or irregular texture of the skin such as shininess, scaling, or atrophy. In addition, there is no significant elevation or depression of the scar, nor is there induration or inflexibility or keloid formation. Finally, the scar is not productive of any limitation of motion or function.

Both VA examiners were unable to elicit objective evidence of pain to palpation of the left upper arm scar. However, the Veteran has reported that the scar is tender to touch. The Veteran is competent to report that his scar is tender, and the Board finds no reason to doubt his credibility. Therefore, a 10 percent rating is warranted for the left upper arm scar, effective from May 8, 2008. As the Veteran is not shown to have three or four scars that are unstable or painful, a 20 percent rating is

-8-

not warranted. See 38 C.F.R. § 4.118, DC 7804 (2012). Rather, the Veteran has a single scar of the left upper arm.

In addition, the left upper arm scar is not shown to be unstable, therefore, a separate 10 percent rating is not warranted. See 38 C.F.R. § 4.118, DC 7804 (Note 2) (2012); 38 C.F.R. § 4.118, DC 7803 (2007). The scar was described by the VA examiners as stable.

The Veteran's left upper arm scar does not affect his head, face, or neck and it is not deep and does not cause limited motion; therefore, diagnostic codes 7800 and 7801 are not applicable. In addition, the scar does not involve an area of 144 square inches or greater; therefore, a separate rating under DC 7802 is not warranted.

The Board has also considered Diagnostic Code 7805. The Board notes that service connection is also in effect for the residuals of a fracture of the distal left humerus, status post open reduction and internal fixation. Limitation of motion of the affected parts, such as the shoulder and elbow, have been considered by the RO in rating that disorder. To further consider limitation of motion when rating the Veteran's surgical scar would constitute the practice of pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes. 38 C.F.R. § 4.14 (2012). Pyramiding is prohibited by regulation. Id.

The Board has also considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for the potential approval of an extraschedular rating for the Veteran's service-connected left upper arm scar. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111,114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an

-9-

exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1).

There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describes the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.

In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria for rating his left upper arm scar specifically contemplate the symptoms of that disorder: pain, stability, the area of the scar, whether the scar is deep or superficial, and any other disabling conditions caused by the scar.

-10-

In short, the Veteran does not have symptoms associated with his left upper arm scar that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is therefore against a finding that the Veteran's left upper arm scar presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1).

ORDER 

Entitlement to an initial 10 percent rating for a left upper arm scar is granted.

P. M. DILORENZO

Veterans Law Judge, Board of Veterans' Appeals

-11-