Citation Nr: 1328454	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  07-04 785	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to an evaluation in excess of 10 percent 
disabling for second degree burn scar, right ventral 
forearm.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from March 1966 to March 
1969, including service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in Jackson, 
Mississippi.

In April 2013 a travel Board hearing before the undersigned 
was held at the RO.  A transcript of that hearing is of 
record.

The Board notes that additional VA treatment records and the 
report of a VA examination, dated in January 2013, were 
associated with the claims file subsequent to the September 
2012 Supplemental Statement of the Case.  The January 2013 
examination was undertaken to develop a separate issue not 
currently on appeal.  The examination report indicates that 
the Veteran had a right shoulder arthroscopy and that the 
Veteran had a scar related to this procedure.  The 
examination report indicates that the Veteran's loss of 
strength in the right arm is less likely as not proximately 
due to or the result of the Veteran's skin(scar)/dermatology 
condition but is more neurological in nature.  The Board 
finds that this examination is not relevant to the issue on 
appeal and to the extent that the Veteran's right arm 
neurological complaints are discussed, the findings are 
essentially duplicative of those provided in prior opinions 
previously considered and discussed in a prior Supplemental 
Statement of the Case.  As such, the Board finds it 
unnecessary to remand the claim for initial consideration by 
the RO of this evidence.  See 38 C.F.R. § 19.37 (2012).


FINDING OF FACT

The Veteran's scar is not deep, does not cause limitation of 
motion, does not cover an area of 144 square inches or 
greater, and does limit function of the affected part.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent 
disabling for second degree burn scar, right ventral 
forearm, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 
2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Codes 
7800-7806 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

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. 
2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) 
(2012).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her 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); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from 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 
in accordance with 38 C.F.R. § 3.159.  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the agency of original jurisdiction (AOJ).  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims (Court) held that, upon 
receipt of an application for a service-connection claim, 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to 
review the information and the evidence presented with the 
claim and to provide the claimant with notice of what 
information and evidence not previously provided, if any, 
will assist in substantiating, or is necessary to 
substantiate, each of the five elements of the claim, 
including notice of what is required to establish service 
connection and that a disability rating and an effective 
date for the award of benefits will be assigned if service 
connection is awarded 

In a claim for an increased evaluation, the VCAA requirement 
is generic notice, that is, the type of evidence needed to 
substantiate the claim, namely, 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).

Here, the duty to notify was not satisfied prior to the 
initial unfavorable decision on the claim by the AOJ.  Under 
such circumstances, VA's duty to notify may not be 
"satisfied by various post-decisional communications from 
which a claimant might have been able to infer what evidence 
the VA found lacking in the claimant's presentation."  
Rather, such notice errors may instead 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) (where notice was not provided prior to the AOJ's 
initial adjudication, this timing problem can be cured by 
the Board remanding for the issuance of a VCAA notice 
followed by readjudication of the claim by the AOJ) see also 
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the 
issuance of a fully compliant VCAA notification followed by 
readjudication of the claim, such as an SOC or SSOC, is 
sufficient to cure a timing defect).  

In this case, the VCAA duty to notify was satisfied 
subsequent to the initial AOJ decision by way of letters 
sent to the appellant in November 2005 and December 2006 
that fully addressed all notice elements.  The letters 
informed the appellant of what evidence was required to 
substantiate the claim and of the appellant's and VA's 
respective duties for obtaining evidence.  The December 2006 
letter informed the Veteran that a disability rating and an 
effective date would be assigned if the claim was granted.  
Although the notice letters were not sent before the initial 
AOJ decision in this matter, the Board finds that this error 
was not prejudicial to the appellant because the actions 
taken by VA after providing the notice have essentially 
cured the error in the timing of notice.  Not only has the 
appellant been afforded a meaningful opportunity to 
participate effectively in the processing of his claim and 
given ample time to respond, but the AOJ also readjudicated 
the case by way of a supplemental statement of the case 
issued in January 2007 after the notice was provided.  For 
these reasons, it is not prejudicial to the appellant for 
the Board to proceed to finally decide this appeal as the 
timing error did not affect the essential fairness of the 
adjudication.  

VA has a duty to assist the 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 Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA treatment 
records.  The Veteran submitted private treatment records of 
Dr. A., and was provided an opportunity to set forth his 
contentions during the hearing before the undersigned 
Veterans Law Judge.  

At the hearing before the undersigned the Veteran reported 
that he was treated by Dr. A., a private physician, for his 
burn.  The Veteran indicated that he was told that the 
physician could not do anything for the scar because it was 
a chemical burn and that he may have nerve tenderness.  The 
Veteran reported that he submitted all of the records from 
this physician and that he had seen the physician a year 
prior.  

Treatment records regarding the Veteran from a Dr. A. are 
associated with the claims file; however, the spelling of 
the physician's name differs from that provided by the 
Veteran.  In addition, the records associated with the 
claims file are dated in January 2006.

However, VA examination reports indicate that the Veteran 
had not been treated for his scar condition since his 
treatment in service.  In addition, at the hearing before 
the undersigned the Veteran only indicated that he was last 
seen by his private physician one year prior.  There is no 
indication that he was seen one year prior specifically due 
to his scar condition.

Pursuant to 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), 
although VA is required to "make reasonable efforts to 
assist a claimant in obtaining evidence necessary to 
substantiate the Veteran's claim for benefits" so long as he 
"adequately identifies those records and authorizes the 
Secretary to obtain them," VA's duty to secure records 
extends only to relevant records.  38 U.S.C.A. § 5103A(c); 
38 C.F.R. § 3.159(c)(1); Hyatt v. Nicholson, 21 Vet. App. 
390, 394 (2007) (defining relevant evidence for purposes of 
38 U.S.C.A. § 5103A); see also Loving v. Nicholson, 19 Vet. 
App. 96, 102 (2005).  As the Veteran has reported that he 
has not received treatment for his scar condition since the 
initial treatment in service, has been noted to not be 
followed for his scar condition, and has credibly reported 
that the private physician noted that he could not be 
treated for his scar condition, it is unnecessary to remand 
for attempt to obtain any additional records available from 
Dr. A. 

The appellant was afforded VA medical examinations.  
Significantly, neither the appellant nor his representative 
has identified, and the record does not otherwise indicate, 
any additional existing evidence that is necessary for a 
fair adjudication of the claim that has not been obtained.  
Hence, no further notice or assistance to the appellant is 
required to fulfill VA's duty to assist the appellant 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); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).

II.  Higher Evaluation

Disability evaluations are determined by the application of 
a schedule of ratings which is based on average impairment 
of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  
Separate diagnostic codes identify the various disabilities.  
Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1.  Other applicable, general policy 
considerations are: interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating 
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2; resolving any reasonable doubt regarding the degree 
of disability in favor of the claimant, 38 C.F.R. § 4.3; 
where there is a question as to which of two evaluations 
apply, assigning a higher of the two where the disability 
picture more nearly approximates the criteria for the next 
higher rating, 38 C.F.R. § 4.7; and, evaluating functional 
impairment on the basis of lack of usefulness, and the 
effects of the disabilities upon the person's ordinary 
activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 
Vet. App. 589 (1991).

Where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, the present level of disability is of primary 
concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  
However, when an appeal arises from the initially assigned 
rating, consideration must be given as to whether staged 
ratings should be assigned to reflect entitlement to a 
higher rating at any point during the pendency of the claim.  
Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, 
staged ratings are appropriate in any increased-rating claim 
in which distinct time periods with different ratable 
symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 
505 (2007).

Pyramiding, the evaluation of the same disability, or the 
same manifestation of a disability, under different 
diagnostic codes, is to be avoided.  38 C.F.R. § 4.14.  It 
is possible, however, for a Veteran to have separate and 
distinct manifestations attributable to the same injury, 
which would permit a rating under several diagnostic codes.  
The critical element permitting the assignment of multiple 
ratings under several 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.  Esteban v. Brown, 6 Vet. App. 259, 261-62 
(1994). 

When there is an approximate balance of positive and 
negative evidence regarding any issue material to the 
determination of a matter, the Secretary shall give the 
benefit of the doubt to the claimant.  38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).

The Veteran seeks an evaluation in excess of 10 percent 
disabling for a second degree burn scar, right ventral 
forearm.  The Veteran's scar is currently evaluated pursuant 
to 38 C.F.R. § 4.118, Diagnostic Code 7802-7804.

The applicable rating criteria for the skin were amended 
effective on October 23, 2008, specifically 38 C.F.R. § 
4.118, Diagnostic Codes 7800-7805.  This amendment only 
applies to applications for benefits received by VA on or 
after October 23, 2008.  Thus, this amendment does not apply 
to the current case.

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 (2007).  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 (2007).  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 (2007).  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 (2007).  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 November 2004 the Veteran was afforded a VA medical 
examination.  The Veteran reported that he had increased 
sensitivity to the skin over the forearm.  He reported that 
even a shirt tends to aggravate the right forearm and that 
he has found wearing a gauze bandage around the forearm that 
fits rather snugly to be more comfortable than the shirt 
sleeve, which is loose and tends to brush against the 
forearm.  However, in spite of the wrapping, he stated that 
he still has to be careful how he brushes the arm against 
anything secondary to its sensitivity.  Examination of the 
right forearm revealed hyperpigmented area over the ventral 
surface of the right forearm extending twelve inches up the 
arm and circumferentially five inches around the arm.  There 
were no ulcerations or skin breakdown.  There was a patch 
four inches by five inches on the ventral surface of the 
right upper arm over the belly of the biceps that was 
hyperpigmented with no ulcerations or skin breakdown.  There 
was no underlying scaring but the skin was very sensitive to 
touch over the right forearm throughout the hyperpigmented 
area.  The scar did not affect his ability to extend and 
flex his right forearm.  The impression rendered was 
residual scaring from second-degree burn to the right 
forearm with neuralgic pain.  The examiner noted that the 
major disability with the residuals of the burn scar to the 
right forearm was increased sensitivity.  There was no 
functional effect on the use of the right forearm.

The Veteran has reported that he has tissue and nerve damage 
related to his scar.  

In November 2005 the Veteran was afforded a VA medical 
examination.  He reported that he was employed by a local 
sawmill until October 2005 when he retired.  The Veteran 
reported that his burned area caused him to experience 
sensitivity of his skin, especially during cold weather when 
he wears long sleeve shirts.  He stated that he wraps his 
right arm with a cling-like dressing to prevent the shirt 
from touching his skin.  He denied any irritation or 
inflammation of the skin.  He described the sensitivity as a 
tingling sensation over his entire right arm.  He stated 
that the scarring did not prevent him from performing his 
duties at work and did not restrict him from doing chores at 
home.  He reported loss of strength of his right hand but 
did not know if this was from the burn.  Functionally, the 
Veteran was independent in activities of daily living, 
transfers, and ambulation.  He denied being incapacitated 
during the prior year.  Examination revealed a loosely 
fitting dressing over the right arm.  The skin was moist 
with a type of ointment.  There was a well-healed 
superficial twelve by five inch scar that encircled the 
Veteran's right elbow.  It was hyperpigmented, flat, smooth, 
and stable.  There was no adherence to underlying tissue.  
It was not tender.  The texture was normal with that of the 
surrounding skin.  There was no inflammation, edema, or 
keloid formation.  There was no scarring.  There was full 
range of motion of the right arm and wrist.  The diagnosis 
was status post burn to the right arm.  There was no 
functional effect on his right arm or hand.  

In November 2005 the Veteran reported that he discontinued 
work because "deteriorating became worse in picking up 
objects and work strain."

A treatment note dated in January 2006 indicates that the 
Veteran has "a burn that he sustained to his right arm which 
has affected his skin, but does not affect the functional 
ability of his arm, so he should be able to perform duties 
of truck driving."

In February 2007 the Veteran reported that when he sweats it 
was painful.  A treatment noted dated in February 2007 
indicates that the Veteran had no rashes, moles, sores, 
redness, or itching.

The Veteran was afforded a VA medical examination in October 
2007.  The Veteran reported that he did not have any skin 
treatment since service.  He stated that he was employed by 
a local sawmill until October 2005 when he retired.  He 
stated that his burned area caused him to experience 
increased sensitivity of the skin especially during cold 
weather.  He described the sensitivity as a tingling 
sensation over his entire right arm.  He stated that he 
wears long sleeve shirts to keep his arms from tingling.  He 
stated that he keeps his right arm wrapped in a cling-like 
dressing at all times to prevent the shirt from touching his 
skin.  He denied any irritation or inflammation of the skin 
but reported using hydrocortisone over his right arm and 
wrist every two days since the injury to prevent "problems" 
with his scar.  He stated that the scarring did not prevent 
him from performing his duties at work and did not restrict 
him from doing his chores at home.  He reported loss of 
strength of his right hand but did not contribute this to 
his burn.  Functionally, the Veteran was independent in 
activities of daily living, transfers, and ambulation.  He 
denied being incapacitated during the prior year.

Examination revealed that there was a loosely fitting 
dressing over the right arm.  The skin was smooth and dry.  
There was a well-healed, superficial twelve inch by five 
inch scar that encircled the Veteran's right elbow.  It was 
hyperpigmented, flat, smooth, and stable.  There was no 
adherence to underlying tissue.  There was no pain on 
examination.  The texture of the scar was normal with that 
of the surrounding skin.  There was no inflammation, edema, 
or keloid formation.  There was full range of motion of the 
right arm and right wrist.  The diagnosis was status post 
burn to the right arm.  The examiner noted that there was a 
hyperpigmented area of the right arm without obvious 
scarring.  There was no function effect on his right arm or 
hand.  

Neurological examination was performed in October 2007.  The 
Veteran was noted to have reported pain in the burn scar 
that felt like needles are sticking him.  He needed to get 
something for pain every six months or so.  He felt that his 
right hand was getting weak.  He used NSAIDs and topical 
cortisone to treat the pain.  Examination revealed the 
Veteran to wear a curlex bandage over the scarred area of 
the forearm.  There was minimal discoloration of the skin in 
the area of the burn.  There were no trophic skin changes.  
There was normal muscle mass and tone.  He gave no effort on 
strength testing in the right upper extremity (essentially 
flaccid but he could still move the arm, hand and fingers 
normally) and poor effort on the left that correlated with 
the right.  He subjectively had no vibration sense in the 
right arm and temperature sense was subjectively decreased 
in the entire right arm extending far beyond the margins of 
the original injury.  There was no hyperpathia or allodynia 
on examination despite the fact that he wears the bandage to 
protect the scar from touch.  Reflexes were two to three 
plus and equal.  The assessment was that heavy functional 
overlay makes physical findings completely useless.  The 
extent of the Veteran's claimed loss of strength and 
sensation extend far beyond what might be expected from his 
mild superficial injury.  The examiner noted that an 
electromyography (EMG) was need for any objective evidence 
of nerve lesion.  An addendum noted that an EMG showed 
moderate right carpal tunnel syndrome which was likely 
responsible for much of his complaints.  The examiner noted 
that the Veteran's burn injury would not be expected to 
cause carpal tunnel syndrome.

In November 2008 the Veteran was afforded a VA medical 
examination.  The Veteran reported that he did not have any 
skin treatment since service.  He stated that he was not 
being followed for his skin condition.  He indicated that he 
was employed by a local sawmill until October 2005 when he 
retired.  He stated that his burned area caused him to 
experience increased sensitivity of the skin especially 
during cold weather.  He described the sensitivity as a 
tingling sensation over his entire right arm.  He stated 
that he wears long sleeve shirts to keep his arms from 
tingling.  He stated that he keeps his right arm wrapped in 
a cling-like dressing at all times to prevent the shirt from 
touching his skin.  He denied any irritation or inflammation 
of the skin but reported using hydrocortisone over his right 
arm and wrist every two days since the injury to prevent 
"problems" with his scar.  He stated that the scarring did 
not prevent him from performing his duties at work and did 
not restrict him from doing his chores at home.  He reported 
loss of strength of his right hand but did not contribute 
this to his burn.  Functionally, the Veteran was independent 
in activities of daily living, transfers, and ambulation.  
He denied being incapacitated during the prior year.

Examination revealed that there was a loosely fitting 
dressing over the right arm.  The skin was smooth and dry.  
There was a well-healed, superficial thirty by thirteen 
centimeter scar that encircled the Veteran's right elbow.  
It was hyperpigmented, flat, smooth, and stable.  There was 
no adherence to underlying tissue.  There was no pain on 
examination.  The texture of the scar was normal with that 
of the surrounding skin.  There was no inflammation, edema, 
or keloid formation.  There was full range of motion of the 
right arm and right wrist.  There was a hyperpigmented area 
of the right arm without scarring.  There was no 
disfiguration. 

At the hearing before the undersigned Veterans Law Judge in 
April 2013 the Veteran reported that he was losing strength 
in his arm when he was helping his wife wash dishes and 
during other activities.  He was dropping cups and plates 
and it was as if he did not have full strength in his arm.  
He reported that the scar was painful to touch and there was 
irritation in the summer months.  He stated that he has arm 
mobility but not strength.  The Veteran reported that he had 
private treatment for his scar by a Dr. A. and that he was 
informed by this doctor that nothing could be done to treat 
the scar.

In July 2012 the Veteran was afforded a VA medical 
examination.  The examiner noted that the Veteran did not 
have any scars on the trunk or extremities or the head, 
face, or neck.  The examiner noted that the Veteran did not 
have any other pertinent physical findings, complications, 
conditions, signs and/or symptoms (such as muscle or nerve 
damage) associated with any scar or disfigurement of the 
head, face, or neck.  The examiner noted that the 
examination report from November 2008 was reviewed and the 
Veteran indicated that there had not been any change from 
that time and that the information was correct. 

The examiner reiterated that the Veteran denied treatment 
for his burn scar since the initial treatment in service.  
The Veteran reported that he is not being followed for this 
condition.  He was retired from a local saw mill since 2005 
and stated the burn area did not keep him from doing his 
job.  He did report his burned area causes him to experience 
increase sensitivity of his skin, described as a tingling 
sensation, especially during cold weather.  He stated he 
wears long sleeve shirts to keep his arms from tingling.  He 
denied any irritation or inflammation of the skin but 
reported using Hydrocortisone 1% over his right arm and 
wrist every two days since the injury to prevent "problems" 
with his scar.  He stated this scarring did not prevent him 
from performing his duties at work and did not restrict him 
from doing his chores at home.  He reported loss of strength 
of his right hand but does not contribute this to his burn.  
He has been diagnosed with a right rotator cuff injury.  
Functionally, the Veteran was independent in activities of 
daily living, transfers, and ambulation.  He denied being 
incapacitated during the past year.

Examination revealed that the Veteran wore a loosely fitting 
dressing over the right arm.  The skin was smooth and dry.  
There was a well-healed, superficial thirty by thirteen 
centimeter area that encircled the Veteran right elbow.  It 
was hyperpigmented, flat, smooth and stable.  There was no 
adherence to underlying tissue.  There was no pain of the 
area on examination.  The texture of the area was normal 
with that of the surrounding skin.  There was no scarring, 
inflammation, edema or keloid formation.  There was full 
range of motion of the right arm and right wrist.  There was 
no disfiguration.  The Veteran was diagnosed with status 
post burn to the right arm. 

Entitlement to an evaluation in excess of 10 percent 
disabling for second degree burn scar, right ventral 
forearm, is not warranted during any period on appeal.  The 
Veteran's scar is not deep and does not cause limited 
motion.  In addition, examination has revealed that the 
Veteran's scar does not cause any limitation of function of 
the right arm.  The Veteran has reported that he has 
weakness in the right upper extremity that causes him to 
drop things.  However, examination has found that the 
Veteran does not have any neurologic condition associated 
with the burn scar other than pain and sensitivity.  In 
addition, the Veteran has repeatedly reported at examination 
that his scar has not prevented him from performing his 
duties at work and did not restrict him from doing chores at 
home.  As such, entitlement to an evaluation in excess of 10 
percent disabling for second degree burn scar, right ventral 
forearm, is denied.

The Board has considered whether the Veteran's claim 
warrants referral to the Chief Benefits Director of VA's 
Compensation and Pension Service under 38 C.F.R. § 3.321.  
The Court has clarified the analytical steps necessary to 
determine whether referral for extraschedular consideration 
is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  
The Court stated that the RO or the Board must first 
determine whether the schedular rating criteria reasonably 
describe the Veteran's disability level and symptomatology.  
Id. at 115.  If the schedular rating criteria do reasonably 
describe the Veteran's disability level and symptomatology, 
the assigned schedular evaluation is adequate, referral for 
extraschedular consideration is not required, and the 
analysis stops.  Id. 

The Veteran does not meet the criteria for an evaluation in 
excess of 10 percent disabling for second degree burn scar, 
right ventral forearm and there are no aspects of the 
disability not contemplated by the schedular criteria.  The 
criteria take into consideration the complete manifestations 
of the Veteran's disability including the scar.  As 
discussed above, the Veteran's reported weakness of the 
right upper extremity has not been related to the Veteran's 
scar condition.

Furthermore, the Board finds no evidence of any unusual or 
exceptional circumstances, such as marked interference with 
employment or frequent periods of hospitalization related to 
the service-connected disability at issue, that would take 
the Veteran's case outside the norm so as to warrant an 
extraschedular rating. Therefore, referral by the RO to the 
Chief Benefits Director of VA's Compensation and Pension 
Service, under 38 C.F.R. § 3.321  is not warranted.  See id. 

Finally, where a Veteran: (1) submits evidence of a medical 
disability; (2) makes a claim for the highest rating 
possible; and (3) submits evidence of unemployability, the 
requirement in 38 C.F.R. § 3.155(a) that an informal claim 
"identify the benefit sought" has been satisfied and VA must 
consider whether the Veteran is entitled to a total rating 
for compensation purposes based on individual 
unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 
(Fed. Cir. 2001).  TDIU may be a part of a claim for 
increased rating.  Rice v. Shinseki, 22 Vet. App. 447 
(2009).  In this case, although the Veteran has indicated 
that his right upper extremity weakness resulted in his 
early retirement, there is no indication that the Veteran's 
scar condition resulted in the Veteran's upper extremity 
weakness and the Veteran has reported that his scar 
condition did not impact his functionality at work.  
Accordingly, TDIU is not raised by the record.




	(CONTINUED ON NEXT PAGE)



ORDER

Entitlement to an evaluation in excess of 10 percent 
disabling for second degree burn scar, right ventral 
forearm, is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs