Citation Nr: 1331944 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-31 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for service-connected hysterectomy with scar, currently rated 30 percent disabling. 2. Entitlement to an increased rating for service-connected degenerative joint disease of the left shoulder, currently rated 10 percent disabling. 3. Entitlement to an increased rating for service-connected degenerative joint disease of the left wrist, currently rated 10 percent disabling. 4. Entitlement to an increased (compensable) rating for right lung scarring. 5. Entitlement to an increased (compensable) rating for left breast scar. 6. Entitlement to an increased (compensable) rating for right forearm scar. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from November 1987 to November 2007. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In November 2010, the Board granted service connection for right wrist strain, denied service connection for hernia scar, and remanded the remaining issues on appeal for additional development, to include affording the Veteran VA examinations. In April 2012, the Board clarified that the claim for a higher rating for a breast scar pertained to the left breast, not the right. The record raises the issue of entitlement to a TDIU and the issue is now considered part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issues have been recharacterized to comport with the evidence of record. The claims for higher ratings for hysterectomy with scar, degenerative joint disease of the left shoulder, and degenerative joint disease of the left wrist, to include a TDIU, being remanded 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. FINDINGS OF FACT 1. The Veteran's right lung scarring is manifested by no signs or symptoms. 2. The Veteran's left breast scar is not unstable or painful; deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); or superficial and nonlinear, in an area or areas of 144 square inches (929 square centimeters) or greater; and does not result in limitation of function. 3. The Veteran's right forearm burn scar is not unstable or painful; deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); or superficial and nonlinear, in an area or areas of 144 square inches (929 square centimeters) or greater; and does not result in limitation of function. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for right lung scarring have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.97, Diagnostic Code 6820 (2012). 2. The criteria for the assignment of an initial compensable disability evaluation for a left breast scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, including Diagnostic Codes 7800-7805 (2012). 3. The criteria for the assignment of an initial compensable disability evaluation for a right forearm burn scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, including Diagnostic Codes 7800-7805 (2012). Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in May 2008, June 2008, and December 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claims were subsequently readjudicated, most recently in a June 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained; she did not identify any additional records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2007 and April 2011; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiners reviewed the claim file and the rationales for the opinions provided are based on objective findings and reliable principles. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. For claims for an increase that rises out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under Diagnostic Code 6820, benign neoplasms of any specified part of the respiratory system are evaluated using an appropriate respiratory analogy. See 38 C.F.R. § 4.97, Diagnostic Code 6820 (2012). The schedule for rating disabilities concerning the evaluation of scars was amended effective October 23, 2008. The revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23, 2008). Thus, all Diagnostic Codes discussed below are the versions in effect prior to October 23, 2008. Under Diagnostic Code 7800, which governs disfigurement of the head, face, or neck, a 10 percent evaluation is warranted for one characteristic of disfigurement. A 30 percent disability rating is warranted when there was visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent disability rating is warranted when there was visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent disability rating is warranted when there was visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). Under Note 1, the eight characteristics of disfigurement are: a scar 5 or more inches (13 or more cm.) in length; a scar at least 1/4 inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding 6 square inches (39-sq. cm.). Id. Under Diagnostic Code 7801, which governs scars, other than the head, face, or neck, that are deep or cause limited motion, a 10 percent evaluation is assigned when the area or areas exceed six square inches (39 square centimeters). A 20 percent evaluation is assigned when the area or areas exceed 12 square inches (77 square centimeters). Note 2 provided that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, scars, other than the head, face, or neck, that are superficial, that do not cause limited motion, and that involve area or areas of 144 square inches (929 sq. cm.) or greater are assigned a 10 percent rating. Note 2 under the diagnostic code provides that a superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7803, a 10 percent evaluation is assigned for scars that are superficial and unstable. Note 1 under the diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provided that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 assigns a 10 percent rating for scars that are superficial and painful on examination. Note 1 under the diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7805, other types of scars will be rated based on limitation of function of affected part. Analysis Right Lung Scarring The Veteran has been assigned an initial noncompensable disability evaluation for right lung scarring under Diagnostic Code 6820. She seeks a higher, compensable rating. The August 2007 VA examination report notes no current problems from right lung scarring and no current treatment. The April 2011 VA report of examination notes no symptoms associated with right lung scarring. A good respiratory examination of the chest was reported and no deformities of the chest wall were noted. The lungs were noted to be clear in all lung fields. No signs of pulmonary hypertension, cor pulmonales or congestive heart failure were reported. There is no evidence of symptoms relating to her service-connected right lung scarring, including any symptoms of the larynx or pharynx such as hoarseness, communication problems, or stricture of obstruction, to warrant a compensable evaluation under the diagnostic codes relating to the throat. See 38 C.F.R. § 4.97, Diagnostic Codes 6515-6521 (2012). There is no evidence of any symptoms of right lung scarring to warrant an analogous rating under any respiratory diagnostic code. See 38 C.F.R. § 4.97, to include Diagnostic Codes 6820-6847. In light of the lack of medical or lay evidence indicating that the Veteran currently suffers from any symptoms or disability resulting from her service-connected right lung scarring, a compensable initial evaluation is not warranted at any time during the appeal period under any respiratory diagnostic code. The preponderance of the evidence is against the claim; there is no doubt to be resolved. A compensable disability evaluation is not warranted for right lung scarring. Left Breast Scar The Veteran's service-connected left breast scar resulting from a biopsy in 2004 has been assigned an initial noncompensable disability evaluation under Diagnostic Code 7804. She seeks a higher, compensable rating. A small scar on the lower inner quadrant of the left breast reported on VA examination in August 2007 was noted to be linear, and measure 2.5 x 0.5 cm on VA examination in April 2011. The examiner reported that the scar was flat, nontender, mobile, nonadherent, and superficial without signs of inflammation, induration or keloid formation. Although noted to be hypopigmented, the texture of the scar was noted to be consistent with surrounding skin texture. The skin was noted to be without breakdown, and no disfigurement was reported. A higher, 10 percent rating is not warranted under Diagnostic Code 7804 at any time during the appeal period as the competent objective evidence establishes that the left breast scar is not unstable or painful. Although the Veteran is competent to report her symptoms, she denied any problems with the scar on VA examination in April 2011. The Board has considered evaluating the service-connected left breast scar under other potentially applicable codes. However, a disability rating under Diagnostic Codes 7800, 7801, and 7802 is not for application. The left breast scar has not been found to be: located on the head, face or neck (Diagnostic Code 7800); deep or cause limited motion in an area exceeding 6 square inches (39 sq. cm) (Diagnostic Code 7801); superficial and does not cause limited motion in an area or areas of 144 square inches or greater (Diagnostic Code 7802). A compensable rating is not warranted under the criteria of Diagnostic Code 7805, for limitation of function of the affected part, because there is no limitation of function. The preponderance of the evidence is against the claim; there is no doubt to be resolved. A compensable disability rating for the left breast scar is not warranted. Right Forearm Burn Scar The Veteran's service-connected right forearm scar has been assigned a noncompensable disability evaluation under Diagnostic Code 7804. She seeks a higher, compensable rating. The August 2007 VA examination report notes a very light brown burn scar measuring 14 x 3 cm. The April 2011 VA examiner measured the scar at 8 x 5 cm with an area of 40 cm. The examiner reported that the scar was flat, nontender, mobile, non adherent, and superficial without signs of inflammation, induration or keloid formation. Although the right forearm scar was irregular in shape, the examiner noted that the scar was barely visible. Although noted to be slightly hyperpigmented, the texture of the scar was consistent with surrounding skin texture. The skin was noted to be without breakdown, no disfigurement or asymmetry was reported, and complete healing with no residuals was noted. A higher, 10 percent rating is not warranted under Diagnostic Code 7804 at any time during the appeal period as the competent objective evidence establishes that the right forearm burn scar is not unstable or painful. Although the Veteran is competent to report her symptoms, she denied any problems with the scar on VA examination in April 2011. The Board has considered evaluating the service-connected right forearm burn scar under other potentially applicable codes. However, a disability rating under Diagnostic Codes 7800, 7801, and 7802 is not for application. The scar has not been found to be: located on the head, face or neck (Diagnostic Code 7800); deep or cause limited motion in an area exceeding 6 square inches (39 sq. cm) (Diagnostic Code 7801); superficial and that does not cause limited motion in an area or areas of 144 square inches or greater (Diagnostic Code 7802). A compensable rating is not warranted under the criteria of Diagnostic Code 7805, for limitation of function of the affected part because there is no limitation of function. The preponderance of the evidence is against the claim; there is no doubt to be resolved. A compensable disability rating for right forearm burn scar is not warranted. The right lung scarring, left breast scar, and right forearm burn scar do not meet the criteria for compensable disability evaluations. Such evaluations are available for manifestations which are not present. There are no manifestations present that are not contemplated by the rating schedule which would warrant referral for extraschedular consideration and such is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER A compensable disability evaluation for right lung scarring is denied. A compensable disability evaluation for a left breast scar is denied. A compensable disability evaluation for a right forearm burn scar is denied. REMAND In August 2012, the Veteran submitted a VA Form 28-1900, Application for Vocational Rehabilitation based on disabilities of the left shoulder, hands, and hysterectomy. It is unclear whether the Veteran participated in Vocational Rehabilitation as a result of this application. Nonetheless, the Board finds that the Veteran's VA Vocational Rehabilitation records, if any, would be useful in adjudicating the issues on appeal, to include TDIU. Records generated by VA facilities that may have an impact on the adjudication of a claim, such as Vocational Rehabilitation records, are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records, as they may affect the issues on appeal. 38 C.F.R. § 3.159(c) (2012). Accordingly, the claims for higher ratings for hysterectomy with scar, degenerative joint disease of the left shoulder, degenerative joint disease of the left wrist, and TDIU are REMANDED for the following action: 1. Obtain all VA Vocational Rehabilitation records, if any, for the Veteran. Associate all received records, if any, with the claim file. 2. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs