Citation Nr: 1329032 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-22 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial compensable disability rating for a left chest anterior scar, post thoracotomy, prior to July 10, 2009, and a disability rating in excess of 10 percent since. 2. Entitlement to an initial compensable disability rating for a two left posterior chest scars, post thoracotomy, prior to July 10, 2009, and a disability rating in excess of 10 percent since. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1963 to December 1967. This appeal to the Board of Veterans' Appeals (Board) is from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In his May 2009 Substantive Appeal, the Veteran withdrew his appeal for a higher rating for service connected tuberculosis. Therefore, this issue is no longer in appellate status. In a June 2013 statement, the Veteran's representative waived Agency of Original Jurisdiction (AOJ) review of additional evidence submitted by the Veteran. Therefore, the Board may review this additional evidence in the first instance. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's left chest anterior scar, post thoracotomy, is characterized by discomfort and/or pain. 2. During the entire period on appeal, the Veteran's two left posterior chest scars, post thoracotomy, are characterized by discomfort and/ or pain. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria are met for an initial disability rating of 10 percent, but no higher, for a left chest anterior scar, post thoracotomy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.114, 4.118, Diagnostic Codes (DCs) 7800-7805 (2007). 2. For the entire period on appeal, the criteria are met for an initial disability rating of 10 percent, but no higher, for two left posterior chest scars, post thoracotomy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.114, 4.118, Diagnostic Codes (DCs) 7800-7805 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 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 the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Here, the Veteran's claim for an increased rating arises from an appeal of the initial grant of service connection for his scars. Because service connection was granted, the claim is substantiated and no additional notice is required as to the downstream issue involving entitlement to an increased rating. Moreover, the Veteran has had ample opportunity to respond and supplement the record and he has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). VA also 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 relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran's available service treatment records and VA treatment records have been obtained. The Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran also was provided with VA examinations in May 2007 and June 2012. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected scars as they include an interview with the Veteran, a review of the record, and a full physical examination addressing the relevant rating criteria. Further, the Veteran has not alleged, nor does the record show, that his service-connected scars have worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, the Board finds that VA has fully satisfied the duty to assist. VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis As noted above, the Veteran's claims arise from his disagreement with the initial ratings assigned following the granting of service connection. The Court of Appeals for Veterans Claims (Court) has noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of the initial disability evaluations where the disabilities in question have just been service connected. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged" rating. Fenderson, 12 Vet. App. 125-126. The Court since has extended this practice, however, even to claims that do not involve initial ratings. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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 reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is seeking initial compensable ratings for his service-connected scars, one on the left anterior chest and two on the left posterior chest, prior to July 10, 2009, and ratings in excess of 10 percent since. These service-connected scars are rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804, which states that a 10 percent rating is warranted for superficial scars (one not associated with underlying soft tissue damage) that are painful on examination. No higher schedular rating is available under this Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). During the pendency of his appeal, the schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008. However, the amended regulations apply only to claims received by VA on or after October 23, 2008, unless the Veteran has requested review under the new regulations. See 73 Fed. Reg. 54710 (October 23, 2008). Since the Veteran filed his claim in February 2007 and has not requested review under the amended regulations, only the regulations in effect prior to October 23, 2008, will be applied. DC 7800 is for rating disabilities that result in disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800 (2007). As the Veteran's service-connected scars are on his chest, this DC is not for application in the instant case. Under DC 7801, scars, other than on the head, face, or neck, that are deep or that cause limited motion are assigned a 10 percent evaluation for an area or areas exceeding 6 square inches. A 20 percent evaluation is assigned for an area or areas exceeding 12 square inches. 38 C.F.R. § 4.118, DC 7801 (2007). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, are separately rated and combined in accordance with 38 C.F.R. § 4.25. Id. at Note (1). A deep scar is one associated with underlying soft tissue damage. Id. at Note (2). Under DC 7802, scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion are assigned a 10 percent evaluation for an area or areas of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2007). Scars that are in widely separated areas are separately rated and combined in accordance with § 4.25. Id. at Note (1). A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (2). Under DC 7803, superficial and unstable scars are assigned a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7803 (2007). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (2). Under DC 7805, scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The Board has reviewed all of the evidence in the Veteran's claims file, including his VA treatment records, VA examination reports, and statements submitted in support of his claim. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claims. In determining whether the Veteran is entitled to an initial compensable disability rating for his left chest anterior scar and his two left posterior chest scars, prior to July 10, 2009, the Board has reviewed VA outpatient treatment records, and the May 2007 VA examination report. Based on this evidence, the Board finds that the Veteran is entitled to initial disability ratings of 10 percent for his scars for the entire period on appeal. Private treatment records from Kaiser Permanente, undated, reflect the Veteran's reports of pain in his chest. The Veteran was afforded a VA examination in May 2007 in connection with claim of entitlement to service connection for the scars. The Veteran was noted to have three scars. One scar was described as a long scar under the left breast that goes to the posterior lung, measuring 41 centimeters by 0.5 centimeters. The scar was slightly depressed and non-tender. There was no indication of hypopigmentation, keloid formation, instability, adherence, burn, ulceration, disfigurement, abnormal texture, loss of underlying tissue, or limitation of motion to the scar. The examiner did find hyperpigmentation, but it measured less than 6 square inches. The other two scars were noted to be on the left anterior chest. Both scars were described as somewhat linear and horizontal, measuring 4 centimeters by 2 centimeters, and 2 centimeters by 1 centimeters. The examiner stated both were slightly depressed and non-tender. Again, there was no indication of hypopigmentation, keloid formation, instability, adherence, burn, ulceration, disfigurement, abnormal texture, loss of underlying tissue, or limitation of motion to the scars. The examiner did find hyperpigmentation, but it measured less than 6 square inches for each scar. The examiner concluded the examination by stating that the residuals of the scars are in the left chest and left flank. He noted that the scars are non-disfiguring and there were no functional limitations as a result of the scars but that the Veteran reported some pain at the area of the scars. The Veteran's VA treatment records noted his complaints of mild discomfort near his previous surgery for his thoracotomy, mainly when he is lying down. Specifically, a July 2009 VA treatment record notes the Veteran presented with pain in his chest when he sleeps on the area where the scars are located. The Veteran's scars were most recently evaluated in June 2012. The Veteran stated within the past few years he has noticed a worsening of the scar pain, with sleep disturbances secondary to the pain waking him up at night if he lies on his left side. He also reported sensitivity to the scar to touch and temperature. Upon objective physical examination, the examiner noted the scars were well healed, not unstable, and not adherent to underlying tissues. The scars were noted to be sensitive to light touch along the portion of the scar directly beneath the armpit. The examiner described the first scar as 40 centimeters on the left anterior chest wall, extending to the posterior chest wall. The examiner also stated there were two scars immediately below this, each measuring 2.5 to 3 centimeters. The examiner determined that all scars were linear. The total area of hypo or hyperpigmented areas, abnormal texture, missing underlying soft tissue, and non-flexible scars was found to be 2 centimeters. More recent VA treatment records from 2013 show that the Veteran continues to complain of severe daily pain at left surgical site and drain incision sites. Based on the above evidence, the Board finds that the Veteran is entitled to initial compensable disability ratings of 10 percent for his left chest and two left flank scars for the entire period on appeal, pursuant to DC 7804. See 38 C.F.R. § 4.118, DC 7804 (2007). As stated, DC 7804 provides a 10 percent rating for superficial and painful scars. Here, the May 2007 VA examination report, the private treatment reports, the July 2009 VA treatment record, and the June 2011 VA examination report all reflect that the Veteran's scars were superficial (i.e., not associated with underlying tissue damage), stable (i.e., not associated with frequent loss of covering of skin over the scar), an linear, but that there was pain at the area of the scars during the examination and by report of the Veteran. The Board notes a 10 percent evaluation is the maximum assignable for painful or tender superficial scars under Diagnostic Codes 7804. Thus, higher evaluations are not available under this DC. See 38 C.F.R. § 4.118, DC 7804 (2007). The Board has also considered whether there are any other applicable DCs that may permit a higher disability evaluation. As noted earlier, DC 7800 only pertains to disfigurement of the head, face, or neck, so it is not for application in the instant case. Additionally, DCs 7801 and 7802 provide ratings for scars that are deep, which his defined as being associated with underlying tissue loss. The competent evidence does not show that the Veteran's scars are deep. As such, this DC is not for application. Similarly, DC 7803 provides a 10 percent rating for scars that are unstable, which is defined as having a frequent loss of covering of skin over the scar. As noted previously, the evidence of record does not show that the Veteran's scars are unstable. As such, this DC is not for application. Finally, DC 7805 permits rating scars based on limitation of function of the affected part, but as noted previously, the evidence does not show that the Veteran's scars result in any limitation of function of the affected body part. As such, this DC is not for application. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his scars. In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain and sensitivity due to his scars. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted in the medical evidence above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating and, indeed, has granted initial ratings of 10 percent based on pain and tenderness. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight where applicable. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a),(b)(2013). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). 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). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's scars, as described above, are not shown to cause any impairment that is not already contemplated by the rating criteria, and the Board finds that the rating criteria reasonably describe his disability. His complaints of pain associated with his scars are specifically contemplated by the schedular rating criteria of DC 7804. Moreover, there is no evidence that the scars marked interference with employment or frequent periods of hospitalization. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. In sum, after resolving all doubt in the Veteran's favor, the Board finds the disability picture imposed by the Veteran's scars most nearly approximates the criteria contemplated by the 10 percent schedular rating pursuant to Diagnostic Code 7804 for the period prior to July 10, 2009. See 38 C.F.R. § 4.118a, Diagnostic Code 7804 (2007). However, the preponderance of the evidence is against ratings in excess of 10 percent at any time during the course of the appeal. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 10 percent, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). Finally, a total rating based on individual unemployability (TDIU) is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining substantially gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2013). 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) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the record does not show, nor does the Veteran contend, that his service-connected scars result in impairment that prevents him from obtaining or maintaining substantially gainful employment. Accordingly, entitlement to a TDIU is not reasonably raised by the record and is not an issue before the Board at this time. ORDER Prior to July 10, 2009, entitlement to a disability rating of 10 percent, but no higher, for the left chest anterior scar, post thoracotomy scar, is granted, subject to the rules and regulations governing the payment of VA monetary benefits. To this extent, the appeal is granted. Prior to July 10, 2009, entitlement to a disability rating of 10 percent, but no higher, for the two left posterior chest scars, post thoracotomy, is granted, subject to the rules and regulations governing the payment of VA monetary benefits. To this extend, the appeal is granted. Entitlement to a disability rating in excess of 10 percent from July 10, 2009 to present for the left chest anterior scar, post thoracotomy scar is denied. Entitlement to a disability rating in excess of 10 percent from July 10, 2009 to present for the two left posterior chest scars, post thoracotomy, is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs