Citation Nr: 1327133 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 08-09 867A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for residual shell fragment wound scar on the right flank of the lumbar area. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. This appeal to the Board of Veterans' Appeals (Board) arises from an October 2007 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans' Affairs (VA), which granted an increased 10 percent rating for the Veteran's service-connected scar of the right flank of the lumbar area, effective March 12, 2007. In June 2013, the Veteran submitted claims for an increased rating for PTSD and an increased rating for residuals of a shrapnel wound to the right ankle. In addition, VA examination in August 2007 indicated that the Veteran had shrapnel (foreign bodies) in his right flank region on x-ray and MRI. He has complained of pain in both the lumbar and right flank regions. Claims for service connection for a lumbar spine disorder, service connection for shrapnel in the right flank (i.e., a muscle disability), and increased ratings for PTSD and residuals of a shrapnel wound to the right ankle are referred to the RO for appropriate action. FINDING OF FACT The Veteran's scar of the right flank of the lumbar area was found to be .75 millimeters by 2 millimeters in size and was also found to be painful, but it has not been found to cause any functional limitations. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residual shell fragment wound scar on the right flank of the lumbar area are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). An April 2007 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). An additional VCAA letter was sent to the Veteran in May 2009. With regard to the duty to assist, the claims file contains VA treatment records dated through 2013, Social Security records, the reports of VA examinations, and the assertions of the Veteran and his representative. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds, however, that staged ratings are not warranted here, as the degree of impairment due to the Veteran's scar has not varied significantly during the appeal period. Where there is a question as to which of two evaluations apply, 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran received VA examinations pertaining to the right flank area in May 2007, August 2007, May 2009 and May 2013. In May 2007, the Veteran reported constant pain internally around the right midback/right flank area near the scar. He reported increased pain with movement, stretching and cold weather. He would take Tylenol and darvocet every six hours, which helped with his pain. Physical examination showed a .75mm x 2 mm hypo pigmented scar 4 inches to the right of the midback, 6 inches below the right scapula and 2 inches above the waist. There was pain at the scar and in the surrounding area. There was no adherence to underlying tissue and the skin texture was regular. The scar was stable and there was a slight depression. The scar was superficial with no underlying tissue damage. There was no infection, edema or keloid formation. The hyperpigmented color of the scar measured .75 mm. There was no induration or inflexibility of the skin and no limitation of motion from the scar. The Veteran's limitation of movement appeared due to shrapnel, which was internal in that area. A diagnostic CT scan of the area revealed a subcenter hypodensity area in the mid portion of the right kidney, which may have been shrapnel. The diagnostic impression was right midback stable scar from a shrapnel wound. An August 2007 VA orthopedic examination produced a pertinent diagnostic impression of right flank shrapnel wounds with persistent pain in this area. No scarring was found. At a May 2009 VA orthopedic examination, the examiner noted residual pain to palpation in the right flank area. No scarring was found. At a May 2013 VA examination, the pertinent diagnosis was negative scar of the lumbar area. It was noted that the Veteran had a remote history of shrapnel wounds to the right lower back. The skin in the area was not found to be painful or unstable. The examiner noted that though a 1x1 annular scar on the right medial spine area had been previously noted, the examiner was unable to identify that scar on the current physical examination. Thus, he concluded that the scar examination was negative. The Veteran's scar is rated under 38 C.F.R. § 4.118, schedule of ratings for disorders of the skin, under Diagnostic Code 7804. The Veteran initially filed his claim for an increased rating for his scar in March 2007. During the pendency of his appeal, the schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008); see also 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805 (2009). However, because the amended regulations apply only to claims received by VA on or after October 23, 2008, that version of the skin regulations will not be applied here. See Id. Diagnostic Code 7804 provided a 10 percent rating for superficial scars that were painful on examination. A superficial scar was one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Other possible codes for rating scarring include Diagnostic Code 7801, which assigned a 10 percent rating for scars, other than the head, face, or neck, that are deep or that caused limited motion. Also, under Diagnostic Code 7802, superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated as 10 percent disabling. Additionally, under Diagnostic Code 7803, superficial unstable scars were rated as 10 percent disabling. An unstable scar was one where, for any reason, there is frequent loss of covering of skin over the scar. Finally, under Diagnostic Code 7805, "other scars" were rated on limitation of function of the affected part. 38 C.F.R. § 4.118. In this case, the Veteran was initially found to have a painful scar on the right flank of the lumbar area, which provided the basis for the existing 10 percent rating under Diagnostic Code 7804. A 10 percent rating is the highest rating available under this code. The scar, when it was found, was not shown to be deep or to cause limited motion. The May 2007 VA examiner stated that the scar was superficial. Notably, the Veteran has been found to have some limitation of motion of the spine but it has not been attributed to his scarring. Rather, the VA examiner stated that the limitation of movement appeared due to shrapnel, which was internal in that area. Consequently, a higher and/or separate rating under Diagnostic Code 7801 is not warranted. Similarly, the scar was not shown to cover an area of 144 inches (929 square centimeters) or greater; rather, it was measured as only .75mm x 2mm, which constitutes a much smaller area. Consequently, a higher and/or separate rating under Diagnostic Code 7802 is not warranted. Additionally, the scar was not shown to be unstable. The May 2007 VA examiner described the scar as stable. Consequently, a higher and/or separate rating under Diagnostic 7803 is not warranted. Further, the scar when found, was not shown to result in any limitation of function, with the May 2007 VA examiner simply finding pain to palpation in the scar area and noting that the Veteran's limitation of movement appeared to be due to actual shrapnel, which was internal in that area. Consequently, a higher and/or separate rating under Diagnostic 7805 is not warranted. A claim for service connection for shrapnel in the right flank (i.e., a muscle disability) has been referred to the RO in the Introduction. Accordingly, as none of the applicable rating codes allow for assignment of a higher rating, a rating in excess of 10 percent for the scar on a schedular basis is not warranted. The Board has also considered whether the Veteran's claim for increase should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. As explained above, the Veteran's scar symptomatology, including pain, is fully contemplated by the pertinent diagnostic criteria (i.e., DC 7804). There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 10 percent for residual shell fragment wound scar on the right flank of the lumbar area is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs