Citation Nr: 1333451 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-14 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating for service-connected scars, right arm and right breast, rated 10 percent. 3. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On the Veteran's March 2010 VA Form 9, he requested a hearing at his local RO. He failed to report to the hearing and his hearing request is considered withdrawn. The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for PTSD was denied in an unappealed April 1998 decision on the basis that the Veteran did not have a diagnosis of PTSD or stressors that had been verified. 2. Evidence received since the April 1998 rating decision was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises a reasonable possibility of substantiating the claim. 3. The scar located on the Veteran's right breast is painful on objective examination, but is otherwise superficial, stable, measures less than 6 square inches in size, and causes no limitation of motion, function, or any disabling effects. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for PTSD have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 2. The criteria for a rating in excess of 10 percent for scars of the right arm and right breast have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2007 and 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) 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 sent in January 2008 and in June 2008 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 notified the Veteran of regulations pertinent to the establishment of an effective date and of a 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). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (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, VA and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran is in receipt of disability benefits from the Social Security Administration and these records have been associated with the claim file. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted for his scar in September 2008 and January 2013. The Veteran has not argued, and the record does not reflect, that the examination reports are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. I. New and Material Evidence Rating actions from which an appeal is not timely perfected become final one year following notice of the adverse decision to the Veteran. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for PTSD was denied in an April 1998 rating decision on the basis that the evidence did not show a clinical diagnosis of PTSD and the Veteran's reported stressor was not verified. The Veteran was notified of this decision, but did not appeal. No additional evidence pertinent to that issue was physically or constructively associated with the claim folder within one year of the rating decision. Therefore, that rating decision became final based on the evidence then of record. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010); 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.1105 (2013). The RO received the instant petition to reopen the claim in October 2007. At the time of the last final rating decision, the evidence of record consisted of the Veteran's service treatment records, a February 1998 stressor statement from the Veteran, VA treatment records dated from March 1986 to January 1998, an August 1987 SSA decision determination, and a March 1998 VA examination report. The service treatment records were absent a diagnosed psychiatric disorder. The VA medical records contained diagnoses of various substance abuse related disorders and, a provisional diagnosis of PTSD associated with a report of childhood sexual abuse. The SSA decision did not show disability benefits were granted for PTSD or any psychiatric disorder. The Veteran's February 1998 statement contained his report of his service stressor. The Veteran reported that he and others were waiting to be picked up by a helicopter during a training exercise. The Veteran indicated that the pilot of the helicopter pretended that he was losing control so as to make the Veteran and the others think they would be hit with the blades on the tail of the helicopter. The March 1998 VA examination report showed a diagnosis of dysthymic disorder that the examiner stated was not of service origin. Since the last final rating decision, the evidence includes the Veteran's service personnel records, VA outpatient treatment records dated from June 2007 through February 2013, a February 2008 stressor statement from the Veteran, and records from the Veteran's SSA disability file. The evidence received since the last final rating decision is new, as it was not previously considered the RO. The previously unconsidered service personnel records are not relevant to the claim. Some of the evidence added to the record since the previous April 1998 denial also constitutes material evidence. The Veteran's new February 2008 stressor statement addresses the existence of a stressor that could possibly support a diagnosis of PTSD, which is an unestablished fact necessary to substantiate the claim. The February 2008 stressor statement is not redundant as there was no previous report of these particular stressors. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD and reopening the claim is warranted. II. Increased Eating The Veteran seeks a higher rating for his service-connected scars, right arm and right breast. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). By way of history, the Veteran's service treatment records indicate that he was diagnosed with gynecomastia of the right breast in December 1974. He underwent an excision for the gynecomastia (also referred to as a tumor) that was located in his right breast (also described as being located under his right arm) in that same month. The records of the surgery are not in the claim file. On his initial post-service VA examination, the Veteran reported that he had a tumor beneath the nipple of his right breast. On physical examination, the examiner indicated there was a 1 inch curvilinear incision scar along the lateral aspect of the right areolar at the site where the benign tumor (gynecomastia) was removed. An August 2007 private medical record shows the Veteran was evaluated for breast pain and a palpable abnormality behind his right nipple. On physical examination, his physician indicated that a possible nodule was seen behind the right nipple, slightly inferior. A subsequent ultrasound revealed a solid-appearing well-circumscribed nodule measuring 34 millimeters in greatest dimension. Excision and biopsy were recommended and performed in September 2007. The records contain no relevant information regarding right breast scars. In a February 2008 statement, the Veteran reported that his "service-connected right nipple" was worse than before. He stated that it was very sore and had not healed inside. He indicated that he had sharp pain that shoots out around his nipple if he barely rubbed his chest again something, and it was bigger than before the cyst was removed. The Veteran underwent a VA examination for his scars in September 2008. Physical examination revealed a scar on the anterior surface of the Veteran's trunk on the circumference of his right nipple. It measured 0.25 centimeters (cm) in width and 6.0 cm in length. There was tenderness on palpation. There was no adherence to the underlying tissue, no limitation of motion or function, no underlying soft tissue damage, and no skin ulceration or breakdown over the scar. The diagnosis was circular surgical scar from removal of cyst under right nipple. The Veteran underwent a VA examination for his scars in January 2013. He reported that his scar on his right breast causes him embarrassment. The examiner indicated that the scar was located on the Veteran's anterior trunk. It was linear and not painful or unstable. The scar measured 0.25 cm in width and 6.0 cm in length. The scar was not deep. The scar did not cause limitation of function and there were no other pertinent complications or physical findings. The scar did not impact the Veteran's ability to work. The diagnosis was residual surgical scarring right breast. Service connection is in effect for scars, right arm and right breast, rated 10 percent disabling under DC 7804. The criteria used to evaluate disabilities involving the skin were revised effective September 23, 2008. In VAOPGCPREC 3-2000 (April 2003), VA's General Counsel held that when a provision of the VA rating schedule is amended while a claim for an increased rating under that provision is pending, a determination as to whether the intervening change is more favorable to the Veteran should be made. If the amendment is more favorable, that provision should be applied to rate the disability for periods from and after the effective date of the regulatory change. The effective date of a liberalizing law or VA issue is no earlier than the effective date of the change. The Board will first discuss the appropriate rating for the Veteran's scars under the criteria in effect at the time he filed his claim for an increased rating. See 38 C.F.R. § 4.118, DCs 7800-7805 (2007). The appropriate rating for the Veteran's scars, under the revisions that became effective September 23, 2008, will be discussed separately. Under DC 7801, scars, other than head, face, or neck, that are deep or that cause limited motion warrant a 10 percent rating if the area or areas exceed 6 square inches (39 sq. cm). A 20 percent rating requires an area or areas exceeding 12 square inches (77 sq. cm). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (2007). A maximum rating of 10 percent is assigned for scars, other than the head, face or neck that are superficial, do not cause limited motion, and measure 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2007). A maximum rating of 10 percent is assigned for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803 (2007). Note (1) to DC 7803 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to DC 7803 defines a superficial scar as one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides for a maximum rating of 10 percent for scars that are superficial and painful on objective demonstration. 38 C.F.R. § 4.118, DC 7804 (2007). Other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2007). Diagnostic Code 7806 is not applicable as it addresses dermatitis or eczema. 38 C.F.R. § 4.118, DC 7806 (2007). The Veteran is in receipt of a 10 percent rating for his service-connected painful scar that is located on his right breast under 38 C.F.R. § 4.118, DC 7804. A 10 percent rating is the maximum evaluation under this diagnostic code. The evidence does not support a higher rating under DC 7801. The September 2008 and January 2013 VA examination reports indicate the right breast scar measured 0.25 x 6.0 cm. These measurements are significantly less than the 12 square inches needed for a higher evaluation. The VA examiners also indicated that the right breast scar was superficial (i.e. not deep) and did not cause any limited motion. Diagnostic codes 7802 and 7803 do not provide for ratings higher than 10 percent, which the Veteran already has. Diagnostic code 7805 is inapplicable as the evidence does not show that the Veteran's scar produces any limitation of function or disabling effects. The criteria used to evaluate disabilities involving the skin were revised, effective September 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805. The revisions are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. The Veteran's claim for an increased rating was received in October 2007 and he has not requested such consideration. However, the RO applied the criteria in a January 2009 rating decision. Accordingly, those criteria are applicable to the claim, but only for the period on or after the effective dates of the new regulations. Under the revised criteria, a 20 percent rating under DC 7801 requires an area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (2013). The evidence does not support a higher rating under the revised DC 7801. The January 2013 VA examination report shows the Veteran's right breast scar is not deep and nonlinear, and it measured only 0.25 x 6.0 cm. Diagnostic code 7802 does not provide for ratings higher than 10 percent, which the Veteran already has. Under the 2008 revisions, DC 7803 was removed. 38 C.F.R. § 4.118, DCs 7800-7805 (2013). Under the 2008 version of DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. 38 C.F.R. § 4.118, DC 7804 (2013). The Veteran's scar is not unstable, but it is tender to palpation. However, the Veteran has less than three service-connected scars total. The record reflects that the only scar associated with the gynecomastia that was excised in service, is the single scar located on his anterior trunk, right breast. While the VA examination reports of record include findings with respect to a scar on the Veteran's right wrist; he is not service-connected for a right wrist scar. The record reflects that the right wrist scar was incurred many years after service following an accident. Accordingly, a 20 percent rating under the current version of DC 7804 is not warranted. Under the 2008 revisions, DC 7805 remains inapplicable. The January 2013 VA examination report shows the Veteran's scar does not produce any limitation of function or cause disabling effects. In sum, a rating higher than 10 percent is not warranted under any of the applicable (former and revised) diagnostic codes. The VA examination reports are the most probative evidence of the nature and severity of the Veteran's scar, as they were based on physical examinations and contain sufficient information such that the Board is able to render an informed determination. Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007). However, a higher evaluation is not warranted for any period of time that is covered by this appeal. See also 38 U.S.C.A. § 5107(b). The evidence shows that the Veteran's service-connected scar is superficial and stable, but productive of tenderness on objective demonstration. It does not cause any limited motion or functional impairment. The rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected scar of the right arm and right breast disability is adequate, and referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). There is no evidence of unemployability due to the Veteran's service-connected scar residuals. Therefore, the question of entitlement to a TDIU is not raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER The petition to reopen the claim of entitlement for service connection for PTSD is granted. An increased rating for service-connected scars of the right arm and right breast is denied. REMAND The Board has reopened the claim of entitlement to service connection for PTSD. A mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The claim has thus been broadened to include other psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The reopened claim for service connection for a psychiatric disorder, claimed as PTSD, has not been adjudicated by the AOJ. Consequently, due process mandates that this matter be remanded for adjudication on the merits. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); Hickson v. Shinseki, 23 Vet. App. 394 (2010). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric disorder examination by an appropriate professional. The examiner is to diagnose all psychiatric disorders present and provide an opinion as to whether any disorder diagnosed is related to service. 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs