Citation Nr: 1334356 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-19 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an increased rating (or evaluation) in excess of 10 percent for a laceration of the right hand (hereinafter "right hand scar"). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from October 1952 to October 1954. This appeal comes to the Board of Veterans' Appeals (Board) from October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In a June 2013 Substantive Appeal (VA Form 9), the Veteran requested a Board hearing to be held at the RO (Travel Board hearing). In a written statement received July 2013, the Veteran subsequently withdrew the hearing request. The hearing request is withdrawn. 38 C.F.R. § 20.704 (2013). In a February 2012 written statement submitted with the Veteran's claim for an increased rating, the Veteran's representative specifically stated that the Veteran is not claiming individual unemployability due to service-connected disabilities (TDIU). Thus, this issue is not before the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's right hand scar has been characterized by one scar that is painful, linear, and two and one half centimeters in length. 2. For the entire period on appeal, the Veteran's right hand scar has not been characterized by burn scars or other scars not of the head, face, or neck, that are deep and nonlinear; or three or more scars that are unstable or painful. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right hand scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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, 3.326(a) (2013). 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased rating, the VCAA requires only generic notice as to 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 RO provided notice to the Veteran in March 2012, prior to the initial adjudication of the claim in October 2012. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The March 2012 notice letters also informed the Veteran how disability ratings and effective dates are assigned. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, a copy of a June 2008 Board hearing transcript, a copy of a July 2008 Board decision, and lay statements by the Veteran and others. Second, VA satisfied its duty obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with a VA examination (the report of which has been associated with the claims file) in April 2012. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim for an increased rating in excess of 10 percent for the right hand scar. The VA examiner personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. Additionally, neither the Veteran nor his representative has questioned the adequacy of the examination. The Veteran was offered the opportunity to testify at a hearing before the Board, but withdrew his hearing request in a written statement received July 2013. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating for Right Hand Scar in Excess of 10 Percent Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether a staged rating is warranted; however, as the Board will discuss in more detail below, the Veteran's right hand scar has not increased in severity over the course of the appeal that would warrant different ratings. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (2013). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court held that the critical element was that none of the symptomatology for any of the conditions was duplicative of or overlapping with the symptomatology of the other conditions. The Veteran is in receipt of a 10 percent disability rating for a right hand scar under Diagnostic Code (DC) 7804. The Board notes that the criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). The amendment applies to all applications for benefits received by VA on or after October 23, 2008. See id.; see also 38 C.F.R. § 4.118 (2013). As the Veteran filed the current claim in February 2012, the revised criteria apply. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent disability rating assigned for 5 or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Diagnostic Code 7800 provides for evaluation of burn scar(s), scar(s), or other disfigurement of the head, face or neck. Id. Here, the scar at issue is located on the Veteran's right hand. Thus, Diagnostic Code 7800 is not for application. Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are 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.) warrants a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating requires an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating requires an area or areas of 144 square inches (929 sq. cm.) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying tissue damage. Id. Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Ten percent is the only rating assignable under revised Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. Note (2) under that code provides that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. Id. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code. Id. The Veteran contends that his service-connected right hand scar warrants a higher disability rating. In a December 2012 Notice of Disagreement, the Veteran reported that he is approximately 90 percent disabled. In a January 2013 written statement, the Veteran reported that he has to hire people to perform the work on his farm that he can no longer due on account of his weak right hand. In a July 2013 written statement, the Veteran reported that arthritis, caused by the wound he sustained in service, has set in his right hand; that his hand is weak and numb; that his quality of life has diminished; and that he cannot sleep much at night because his hand is so sore. In September 2013 written statements, the Veteran reported that his hand is so sore he can hardly write. The Veteran stated that his hand is sore due to his service-connected right hand scar and that arthritis has set in. The Veteran has repeatedly reported that his hand is weak and sore. The Veteran also submitted buddy statements, dated in December 2012, and August and September 2013 that reported the Veteran has to hire people to help him because of his sore and weak right hand. The Veteran asserts that a rating in excess of 10 percent is warranted for the service-connected right hand scar. In April 2012, the Veteran underwent a VA examination. The Veteran reported pain to the third through fifth fingers and the palm of the hand and that occasionally ibuprofen provides some relief. The Veteran reported that his right hand pain is aggravated by "everything." The Veteran stated that he has not been able to function as a farmer for the last couple years and that he has hired help to run the farm. The Veteran reported that he is not performing physical labor because of the right hand pain. The VA examiner noted that the Veteran had one scar on his right hand. The VA examiner noted no evidence that the laceration affected any functional aspect of the Veteran's right hand. The VA examiner noted that, over the last three years, the Veteran has had limited range of motion of the third through fifth fingers, but no symptoms to thumb or index finger. The VA examiner noted that the entire hand hurts making it difficult to determine which symptoms are related to the Veteran's service-connected right hand scar as opposed to his non-service connected disabilities such as arthritis. The VA examiner stated that arthritic changes are most likely causing the Veteran's right hand pain and limited range of motion of the fingers and opined that these changes have nothing to do with the Veteran's service connected right hand scar. The VA examination report notes that the Veteran has one painful scar of the trunk or extremities. The report notes that the scar is linear and two and one half centimeters in length. The VA examiner noted that the Veteran reported tenderness with palpation of the scar but that it was difficult to determine if there is truly scar tenderness because the Veteran has generalized pain to the entire hand and is convinced that the scar is causing the right hand problems. The VA examination report notes no scars of the trunk or extremities that are unstable, with frequent loss of covering of skin over the scar. The report notes that none of the scars of the trunk or extremities are due to burns. After reviewing the evidence of record, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his service-connected right hand scar under Diagnostic Code 7804. As noted above, the Veteran has one service-connected scar that is linear and painful, but not unstable. In the absence of three of more scars that are unstable or painful or at least one scar that is both unstable and painful, a higher rating is not warranted under Diagnostic Code 7804. The Board finds that throughout the entire rating period the Veteran's right hand scar more nearly approximate the criteria for a 10 percent disability rating under Diagnostic Code 7804. 38 C.F.R. §§ 4.3, 4.7. A higher disability rating is also not warranted under other potentially appropriate diagnostic codes. Under 38 C.F.R. § 4.118, Diagnostic Code 7800 provides the criteria for rating disfiguring scars of the head, face, or neck, and does not apply in this situation as the Veteran's scar is located on his right hand. The April 2012 VA examiner described the Veteran's right hand scar as being linear. Thus, Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear does not assist the Veteran in obtaining a higher disability rating. Because the Veteran is already in receipt of a 10 percent disability rating, Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear does not assist the Veteran in obtaining a higher disability rating because it provides a maximum 10 percent disability rating per service-connected scar. As mentioned, Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. This diagnostic code directs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. This instruction essentially directs that the scars be rated for functional limitation if present. The Board acknowledges that the Veteran had repeatedly reported that arthritis, caused by the wound he sustained in service, has set in his right hand and that his hand is weak, sore, and numb. The Veteran is competent to report symptoms that come to him through his senses (e.g., that he has pain and weakness in his hand). Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). However, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of arthritis. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). To differentiate pain and stiffness attributable to arthritis from pain and stiffness due to other disorders or etiologies requires knowledge of multiple other disorders that also cause symptoms of pain and stiffness, as well as knowledge of all possible etiologies of arthritis, not just injury to a joint. The Veteran is not been shown to have such knowledge, training, or experience to differentiate such symptoms or as to all possible etiologies of arthritis. The Board emphasizes that the Veteran was denied service-connected for degenerative joint disease of the right hand in a March 1995 RO decision. Additionally, previously at a September 2004 VA examination, the examiner concluded that bilateral hand arthritis and right wrist carpal tunnel syndrome were not due to the Veteran's service-connected right had scar. The April 2012 VA examiner stated that arthritic changes are most likely causing the Veteran's right hand pain and limited range of motion of the fingers and opined that these changes have nothing to do with the Veteran's service connected right hand scar. The April 2012 VA examiner also noted that there was no evidence that the scar affected any functional aspects of the Veteran's right hand. Since the limitation of motion or loss of function of the Veteran's right hand has been associated with non-service connected disabilities, disability ratings under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5214 through 5230 are not for application. Therefore, a higher disability rating is not warranted for the Veteran's service-connected right hand scar under Diagnostic Codes 7800, 7801, 7802, and 7805. See 38 C.F.R. § 4.118. Based on the above evidence, the Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's service-connected right hand scar for the entire rating period. Assignment of staged ratings has been considered, but found not to be applicable in this case. The Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to a rating in excess of 10 percent for the Veteran's right hand scar must be denied. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for the right hand scar. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's right hand scar are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 7804, specifically provide for disability ratings based on painful and unstable scars. In this case, considering the lay and medical evidence, the Veteran's right hand scar is characterized by one scar that is painful, linear, and two and one half centimeters in length. These symptoms are part of the schedular rating criteria for scars, Diagnostic Codes 7800 through 7805. In this case, the Veteran has also reported problems with weakness and soreness in his right hand. However, as described above, these symptoms have been associated with the Veteran's non-service connected disabilities, including arthritis and carpal tunnel syndrome. In the absence of exceptional factors associated with the service-connected right hand scar, the Board finds that the criteria for submission for assignment for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. In this case, the Veteran's representative specifically stated in a February 2012 written statement that the Veteran was not seeking a TDIU as part of his increased rating claim for his right hand scar. Thus, the Board finds that Rice is inapplicable in the present case. ORDER An increased disability rating in excess of 10 percent for a laceration of the right hand is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs