Citation Nr: 1327027 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-48 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased compensable disability rating for scar due to a ganglion cyst of the left wrist. 2. Entitlement to an increased disability rating in excess of 30 percent for residuals of a hysterectomy. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran had active service from November 1974 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 RO rating decision that denied entitlement to increased ratings for the residuals of a hysterectomy and ganglion cyst of the left wrist, and denied entitlement to TDIU. The March 2008 rating decision also denied entitlement to increased ratings for scars due to the bunionectomy of the left and right feet, pes planus, depression, left and right bunionectomy with hallux valgus, and a scar due to an appendectomy and denied entitlement to service connection for left and right knee arthritis. The RO reopened the claims for service connection for a lumbar spine disability and chronic pelvic adhesions, considered these claims on the merits, and denied the claims. The Veteran only perfected an appeal of the issues listed on the title page. In December 2009, the Veteran requested a hearing before the Board. However, in February 2001, before a hearing was scheduled, the Veteran withdrew her request. See 38 C.F.R. § 20.704(d) (2012). In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of entitlement to increased ratings for bilateral pes planus and depression were raised in the June 2013 statement by DAV, the Veteran's representative. To the extent the representative's statement may be construed as a new claim for increase, such newly raised issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and these issues are referred to the AOJ for appropriate action. The issues of entitlement to an increased disability rating in excess of 30 percent for residuals of a hysterectomy and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the entire rating period of the appeal, the service-connected scar due to removal of a ganglion cyst on the left wrist is well-healed, located on the anterior left wrist, 1.5 centimeters by .5 centimeters in size, and hypopigmented; there are no objective findings of pain and tenderness on palpation, the scar is not deep or unstable with frequent loss of covering of the skin, and the scar does not affect the function of the left wrist or cause any other disabling effects or limitation of motion. CONCLUSION OF LAW For the entire appeal period, the criteria for the assignment of a compensable rating for the service-connected scar as a residual of removal of a ganglion cyst on the left wrist have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.20, 4.21, 4.118, Diagnostic Codes 5015, 7801 to 7805 (in effect prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by letters dated in January 2008, prior to the initial adjudication of the claim, and in June 2008 and May 2009. In these letters, VA informed the Veteran of the evidence and information needed to substantiate a claim for an increased rating and informed the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf. VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that she could obtain private records herself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the January 2008 letter explained the type of evidence necessary to establish service connection and the type of evidence necessary to establish a disability rating and effective date for the claims on appeal. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran 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 Veteran's service treatment records are associated with the claims folder. VA treatment records dated from 2002 to December 2009 and the Veteran's Social Security Administration records are associated with the claims folder. The Veteran did not identify any treatment for the service-connected scar due to removal of the ganglion cyst on the left wrist. In January 2008 and May 2009, the Veteran informed VA that she had no additional information or evidence to submit in support of her claim. VA provided examinations in February 2008 and August 2009 to obtain medical evidence as to the nature and severity of the scar due to removal of a ganglion cyst on the left wrist. The examinations are adequate because the examinations were performed by a medical professional based on review of claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner considered the Veteran's reported medical history and lay statements concerning the service-connected scar and described the scar including the size and appearance of the scar. The examination reports are accurate and fully descriptive. Neither the Veteran nor her representative have challenged the adequacy of the examinations obtained for this issue. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Neither the Veteran nor her representative have alleged that the scar due to the removal of the ganglion cyst of the left wrist has increased in severity since the last examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claim and VA met its duty to assist the Veteran. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Veteran is in receipt of a noncompensable rating for service-connected left wrist disability for the entire initial rating period under the provisions of 38 C.F.R. §§ 4.71a , 4.118, DC 5015-7805( hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned). The VA rating schedule provides no diagnostic code specifically applicable to rating a ganglion cyst of the left wrist; therefore, it is rated by analogy to a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 . In this case, the RO has rated the Veteran's service-connected left wrist ganglion cyst as a benign new bone growth. 38 C.F.R. § 4.71a , Diagnostic Code 5015. Such a disorder is rated on the basis of the limitation of motion of the affected part. Id. Diagnostic Code 5015, in turn, rates under Diagnostic Code 5003, the code for degenerative arthritis. Diagnostic Code 5003 provides ratings based on x-ray evidence of degenerative arthritis. In this case, the weight of the evidence do not reveal the presence of arthritis or any degenerative changes, and there is no evidence to the contrary. However, hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. A 10 percent rating is warranted for limitation of motion of the wrist, when dorsiflexion is less than 15 degrees or when palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a , DC 5215. Scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm.) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling; 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, Diagnostic Code 7801 (in effect prior to October 23, 2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 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, Diagnostic Code 7802 (in effect prior to October 23, 2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 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, Diagnostic Code 7803 (in effect prior to October 23, 2008). 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, Diagnostic Code 7804 (in effect prior to October 23, 2008). 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 (in effect prior to October 23, 2008). Analysis The criteria for rating scars was revised, effective on October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4). However, these amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria. See id. Since the Veteran's claim was pending from September 2007, before the October 2008 changes, and VA has not received a request from the Veteran for consideration under the amended criteria, the 2008 amended criteria will not be addressed. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a compensable disability evaluation for the service-connected scar due to the removal of the ganglion cyst on the left wrist for the entire rating appeal period. The service-connected scar is rated under Diagnostic Code 7805, which rates the scar on the basis of the limitation of the part affected, which in this case, is the left wrist. The weight of the competent, probative and credible lay and medical evidence of record shows that the service-connected scar due to the removal of the ganglion cyst on the left wrist is well-healed, is located on the anterior left wrist, is 1.5 centimeters by .5 centimeters in size, and is hypopigmented. The weight of the lay and medical evidence demonstrates that the scar does not affect the function of the left wrist or causes any other disabling effects or limitation of motion. See the VA examination reports dated in February 2008 and August 2009. The February 2008 VA examination report indicates that the Veteran had complaints of pain due to the scar but there was no evidence of pain or tenderness on palpation. The examiner stated that there was no evidence of limitation of motion or loss of function due to the scar. The examiner specifically stated that there was no impairment or limitation of function due to the scar and the scar did not affect employment or limit daily activities. The August 2009 VA examination report indicates that the Veteran reported that she had no current complaints pertinent to the left wrist scar. She stated that she had no pain or limitation of activities of daily living or employment due to the scar. Physical examination revealed that the scar was well-healed and did not cause functional impairment. There was no limitation of motion or limitation of function due to the scar. The examiner stated that the scar did not preclude any forms of employment. The Board finds that a compensable rating for the scar of the left wrist under Diagnostic Code 7805 is not warranted because the weight of the competent and credible evidence shows that the scar does not cause any limitation of motion or function of the part affected. The Board finds that a compensable evaluation is not warranted for the left wrist scar under Diagnostic Code 7801, scars other than the head, face or neck that are deep or that cause limitation of motion. The evidence establishes that the left wrist scar is not deep, there was no adherence to the underlying tissue, and the scar did not cause limitation of motion. The left wrist scar does not exceed 6 square inches or 30 square inches. The scars is less than one square centimeter. See the VA examination reports dated in February 2008 and August 2009. The Board finds that a compensable evaluation is not warranted for the service-connected scar on the left wrist under Diagnostic Code 7802, since the evidence shows that the left wrist scar is less than one square centimeter. See the VA examination reports dated in February 2008 and August 2009. The Board finds that a compensable evaluation is not warranted for the service-connected scar on the left wrist under Diagnostic Codes 7803 or 7804, since the evidence shows that the service-connected scar is not unstable and is not painful on examination. The VA examination reports dated in February 2008 and August 2009 indicate that the service-connected scar did not cause any skin breakdown or ulceration and the texture of the scar was normal. The VA examination reports indicate there was no evidence of tenderness or pain on palpation. The Board has considered the Veteran's complaint of pain on VA examination in February 2008 and finds that the weight of the lay and medical evidence does not demonstrate painful scar. At the time of February 2008 VA examination, the examiner indicated that there was no pain or tenderness on palpation. The Board finds that that examiner's findings are more probative than the Veteran's report of pain because the findings are based on a thorough physical examination of the Veteran. Moreover, in August 2009, the Veteran stated that there was no pain associated with the scar. Thus, on this record, a compensable disability evaluation for the scar due to removal of the ganglion cyst on the left wrist is not warranted under the former provisions of the rating criteria for skin disorders in effect from August 30, 2002 to October 22, 2008 at any time during the appeal period. An compensable rating is not warranted in this case under Diagnostic Code 5215 for left wrist ganglion cyst based upon limitation of motion. The weight of the lay and medical evidence does not demonstrate limitation of motion that would warrant a compensable rating. The February 20098 and August 2009 VA examination reports shows that the wrist disability does not cause any limitation of motion and painful motion was not demonstrated. As such a compensable rating under DC 5215 is not warranted. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for an increased compensable rating for the service-connected scar due to removal of the ganglion cyst on the left wrist, and the claim must be denied. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for service-connected scar due to removal of the ganglion cyst on the left wrist. 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 the claimant'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 the claimant's disability level and symptomatology, then the claimant'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 the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant'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-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's scar due to removal of the ganglion cyst on the left wrist are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Codes 7801 to 7805, specifically provide for disability ratings based on size, location, and appearance of the scar. The rating criteria provide a rating for scars on the basis of limitation of the function of the part affected and pain on examination. In this case, considering the weight of the lay and medical evidence, the Veteran's scar due to removal of the ganglion cyst on the left wrist is not painful or unstable, does not have abnormal texture, does not limit function of the parts affected and does not impact the Veteran's social or occupational functioning. See the February 2008 and August 2009 VA examination reports. The evidence shows that the scar due to removal of the ganglion cyst on the left wrist is less than one square centimeter in size, is well-healed, and is essentially asymptomatic. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the evidence shows that the service-connected scar does not impact the Veteran's occupational functioning or affect her daily life. In the absence of exceptional factors associated with the Veteran's scar, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased compensable rating for the service-connected scar due to removal of the ganglion cyst on the left wrist is denied. REMAND The VCAA specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The Board finds that a VA examination to obtain medical evidence as to the nature and current severity of the service-connected residuals of a hysterectomy is necessary to adequately evaluate the disability and adjudicate the claim. Review of the record shows that the service-connected residuals of a hysterectomy were last examined in 2009. In the June 2013 statement, the Veteran's representative argued that the Veteran has additional symptoms due to the hysterectomy. The Veteran asserts that when she underwent a hysterectomy in service, her ovaries were removed in addition to her uterus, and therefore she is entitled to a higher rating. Thus a new examination is needed to determine the nature and severity of the service-connected residuals of a hysterectomy. The issue of a TDIU is inextricably intertwined with the issues of entitlement to increased ratings for the service-connected disabilities. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Thus, adjudication of the TDIU claim is deferred until adjudication of the increased rating claims. The RO should obtain copies of any outstanding treatment records for from the VA Healthcare System dated since December 2009. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The RO should contact the Veteran by letter and request that she provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA or non-VA treatment records showing treatment of the service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask her to identify all VA and non-VA medical treatment rendered for the service-connected disabilities. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. The letter also should invite the Veteran to submit any pertinent medical evidence or other treatment records in support of the claims. 2. Obtain records of VA treatment records for treatment of the service-connected disabilities dated from December 2009 from the VA healthcare system. 3. After all necessary development is accomplished, adjudicate the issues of entitlement to increased ratings for bilateral pes planus and depression. 4. Schedule the Veteran for the appropriate VA examination to assist in determining the current nature and severity of the service-connected residuals of a hysterectomy. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should provide an opinion as to whether the ovaries were removed in addition to the uterus. The examiner should report all findings, manifestations, and/or complications due to the hysterectomy. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities alone (singularly or in the aggregate) preclude her from securing and following substantially gainful employment consistent with his education and occupational experience. A complete rationale for any and all opinions expressed should be provided. 5. After completing all indicated development, the RO should readjudicate the issues remaining on appeal and the TDIU claim in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and her representative, and they should be afforded a reasonable opportunity for response. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs