Citation Nr: 1336577 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-05 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for the service-connected residuals of a burn scar to the left lower extremity, to include an effective date earlier than July 13, 2006, for the assignment of a 10 percent disability rating therefor. 2. Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine (also referred to herein simply as a "lumbar spine disability"). REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active military service from July 1971 to June 1974, and served in the Puerto Rico Army National Guard (ANG) from May 1975 to May 2004. These matters come to the Board of Veterans' Appeals (Board) on appeal from November 2006 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The November 2006 rating decision, in pertinent part, granted a 10 percent rating for the Veteran's service-connected left lower extremity burn scar. That claim was appealed, and in a September 2011 decision, the Board denied, in pertinent part, the Veteran's claim for a rating in excess of 10 percent for residuals of a burn scar to the left lower extremity. The Veteran appealed the September 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a February 2013 Joint Motion for Partial Remand (JMR), which directed that the portion of the decision that denied entitlement to a rating in excess of 10 percent for residuals of a burn scar to the left lower extremity be vacated and remanded. As the Joint Motion for Partial Remand specifically directed the Board to consider the issue of an earlier effective date for a disability rating in excess of 10 percent for residuals of a burn scar to the left lower extremity through application of 38 C.F.R. § 3.400(o)(2), the issue is as stated on the title page of this decision. With respect to the June 2012 rating decision which granted service connection for lumbar spine disability and assigned a 20 percent disability rating, effective July 28, 2004, a substantive appeal has not been completed. However, as will be explained in more detail below, the Board has jurisdiction to remand this issue because Veteran disagreed with the assignment of the 20 percent disability rating in a timely matter, but a statement of the case (SOC) has not yet been issued by the RO. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). As such, the issue of entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran's superficial burn scar to the left lower extremity is manifested by a scar that is 28 inches long by 8 inches wide (224 square inches) and hypo and hyper-pigmented, but has not been productive of adherence, pain, or instability, or caused limitation of motion or functional loss. 2. In a February 2006 rating decision, the RO granted service connection and assigned a noncompensable rating for the Veteran's residual burn scar of the left leg, effective September 21, 1981, the date of receipt of the claim for service connection. 3. By the terms of the JMR, the July 13, 2006, statement in support of claim is a claim for a compensable rating for a residual scar of the left leg and not a Notice of Disagreement (NOD) to the February 2006 rating decision. 4. A November 2006 rating decision assigned a 10 percent disability rating for residuals of a burn scar to the left lower extremity, effective July 13, 2006 5. It is factually ascertainable that the Veteran's service-connected residuals of a burn scar to the left leg satisfied the criteria for a 10 percent rating within one year from the date of the increased rating claim on July 13, 2005. CONCLUSIONS OF LAW 1. The schedular criteria for an initial rating in excess of 10 percent for residuals of a burn scar to the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10 (2013); 38 C.F.R. § 4.118, Diagnostic Code (DCs) 7801, 7802, 7803, 7804 (2008), effective prior to October 23, 2008. 2. The February 2006 rating decision granting service connection for a residual burn scar to the left leg and assigning a noncompensable rating, effective September 21, 1981, is final. 38 U.S.C.A. §§ 5107, 7105 (West 2002); 38 C.F.R. § 20.200, 20.201, 20.1103 (2013). 3. The criteria for entitlement to an effective date of July 13, 2005, but no earlier, for the assignment of a 10 percent rating for residuals of a burn scar to the left lower extremity, have been met. 38 U.S.C.A. §§ 5107, 5109A, 5110, (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Before addressing the merits of the remaining issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Regarding the Veteran's earlier effective date claim, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Indeed, given the favorable disposition of the earlier effective date claim, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Regarding the Veteran's increased rating claim, the RO provided notice to the Veteran in a letter mailed in August 2006, prior to the issuance of the appealed November 2006 rating decision, that explained what information and evidence was needed to substantiate claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Because the Veteran was provided with proper notice with respect to his claim by way of the August 2006 pre-adjudication notice letter, the Board concludes that VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Moreover, the Veteran and his representative were provided with copies of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA obtained the Veteran's STRs. Also on file are pertinent VA outpatient treatment records. Neither the Veteran nor his representative have identified any outstanding evidence that has not otherwise been obtained. During the course of the appeal, the Veteran was afforded VA examinations in January 2006 and April 2008. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that these examinations are adequate for adjudication purposes. These VA examination reports were comprehensive and adequately addressed the Veteran's scar symptomatology. Due consideration was given to the Veteran's personal complaints as well to the findings made on physical examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board recognizes that the last scar examination is now over five (5) years old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's burn scar of the left leg since the April 2008 VA examination. The Veteran has not argued the contrary. Finally, in a May 2013 letter from the Board, the Veteran was afforded 90 days to submit additional argument or evidence in support of his claim. While no further evidence has been received, additional argument was received by the Board in July 2013 and has been considered in the readjudication of his increased rating claim. The additional argument has not identified any outstanding relevant evidence that VA could obtain. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2013). 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 a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that 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). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. 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. See 38 C.F.R. § 4.7 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). As an initial matter, as noted in the Introduction, the parties to the February 2013 JMR specifically directed the Board to consider the issue of an earlier effective date for a disability rating in excess of 10 percent for residuals of a burn scar to the left lower extremity through application of 38 C.F.R. § 3.400(o)(2). However, in its February 2013 Order, the Court remanded the claim for entitlement to a rating in excess of 10 percent for residuals of a burn scar to the left lower extremity "for action consistent with the terms of the joint motion." Accordingly, in the decision below, the Board has considered the issue of entitlement to a rating in excess of 10 percent for the service-connected residuals of a burn scar to the left lower extremity, to include an effective date earlier than July 13, 2006, for the assignment of a 10 percent disability rating therefor, in an effort to fully comply with the Court's Order and the terms of the JMR. Historically, the record reflects that, in a February 2006 rating decision, the RO granted service connection for burn scar residuals of the left lower extremity that was awarded a noncompensable disability rating under Diagnostic Code 7802, back to September 21, 1981. In July 2006, the RO received the Veteran's current claim for a compensable rating for his left lower extremity burn scars residuals. In November 2006, the RO assigned a 10 percent rating for the burn scar residuals of the left leg, effective July 13, 2006. During the pendency of this appeal, the rating criteria for evaluating scars were amended. See 38 C.F.R. § 4.118, effective for claims received by VA on or after October 23, 2008. See also 74 Fed. Reg. 54708 (Sept. 23, 2008) (codified as amended at 38 C.F.R. § 4.118 (2010). As the Veteran's claim for compensable ratings was received in 2006, the new rating criteria are not for application in his case. The regulations under 38 C.F.R. § 4.118 prior to October 23, 2008 are in effect. Prior to October 23, 2008, under 38 C.F.R. § 4.118, Diagnostic Code 7800 applied to disfigurement of the head, face and neck. Diagnostic Code 7801 applied to scars other than the head face or neck that were deep or that caused limited motion; a 10 percent rating under this code applied where the area exceeded 6 square inches or 39 square centimeters. 38 C.F.R. § 4.118 (2008). Diagnostic Code 7803 applies to scars that are superficial and unstable. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) defines a superficial scar as a scar that is not associated with soft tissue damage. This definition is essentially the same for Diagnostic Codes 7802 and 7804. Diagnostic Code 7802 applies when four requirements are met. The scar or scars must be 1) on a part of the body other than the head, face or neck; 2) must be superficial; 3) must not cause limited motion; and must cover an area of 144 square inches or 299 square centimeters or greater. If the criteria are met, a 10 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 applies when a scar is superficial and painful upon examination; a 10 percent rating is warranted. Note (2) addresses scars that appear on the tip of a finger or toe and the amputation rule. Diagnostic Code 7805 states that other scars should be rated on limitation of function of the affected part. 38 C.F.R. § 4.118. Upon review of the probative medical evidence of record, the Board is of the opinion that no more than the currently assigned 10 percent rating for residuals of a burn scar to the left lower extremity is warranted. In January 2006, the Veteran underwent VA examination for his scars. According to the examination report, the Veteran described his 1972 treatment in service for burn scars on his chest and legs from contents of a cooking pot that included debridement and artificial skin dressings. He complained of sensitive skin, and muscle spasm on the lower legs, the left leg worse than the right leg. Objectively, the Veteran had a scar on the left lower extremity that measured 28 inches long and 8 inches wide (with irregular scar texture that measured 12 inches long by 8 inches wide). The scar was hypo and hyper-pigmented and superficial, but was not painful or adherent to underlying tissue, nor was it unstable, depressed, deep, or inflamed. There was no induration or limitation of motion or function caused by any scar. In April 2008, the Veteran underwent VA examination for his scars. According to the examination report, the Veteran had a well-healed scar with a skin graft on his left leg (anterior and posterior surfaces) that measured 28 inches long and 8 inches wide. There was no tenderness on palpation, adherence to underlying tissue, limited motion or loss of function, underlying soft tissue damage, or skin ulceration or breakdown over the scar. The May 2008 VA outpatient record indicates that the Veteran had skin discoloration associated with skin grafting. Here, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's left lower extremity superficial scar as it exceeds 144 square inches (it is 224 square inches). However, there is no evidence of tenderness on palpation, instability, adherence, or loss of motion or function. In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. left leg scar. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings provided in the VA treatment records should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the 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 the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's disability picture for his left leg scar could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's left leg scar disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes, however, that in this case the Veteran and the record do not indicate that he is unemployable due to his service-connected residuals of burn scar to his left lower extremity. Finally, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. at 505. However, the evidence reflects that his symptoms have remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. III. Earlier Effective Date The Veteran seeks an effective date earlier than July 13, 2006, for the assignment of a 10 percent rating for residuals of a burn scar to the left lower extremity. As noted in the Introduction, the February 2013 Court Order and JMR vacated and remanded the portion of the September 2011 Board decision that denied a compensable rating in excess of 10 percent for the residual scar of the Veteran's left lower extremity. The JMR reflects the parties' agreement that the Board had not considered the potential application of 38 C.F.R. § 3.400(o)(2) (2013), and noted that the grant of the 10 percent rating for the Veteran's service-connected residuals of a burn scar to the left lower extremity was based on the January 2006 VA examination findings. While the claim as adjudicated by the Board was one for an increased rating, the JMR determined that there was an unadjudicated aspect of the appeal related to the appropriate effective date upon application of 38 C.F.R. § 3.400(o)(2). The JMR specifically states "[t]herefore, remand is necessary in the instant case for the Board to address a potential applicable regulation, 38 C.F.R. § 3.400(o)(2)." In the absence of clear and unmistakable error (CUE), a final RO decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 7105, 7111 (West 2002). If evidence establishes the error, the prior decision shall be reversed or revised. 38 U.S.C.A. § 5109A. There is no such procedure as a freestanding challenge to the finality of a VA decision. See DiCarlo v. Nicholson, 20 Vet. App. 52 (2006). Further, after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Except as otherwise provided, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2013). The effective date for a reopened claim other than service department records, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2013). All other reopened claims, including those based on newly received service department records, are governed by 38 C.F.R. § 3.400(r). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2013). At any time after VA issues a decision on a claim, if VA receives and associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). An award made based all or in part on the existence of these service records is effective the date that entitlement arose, or the date that VA received the previously denied claim, whichever was later. 38 C.F.R. § 3.156(c)(3). A retroactive evaluation of a disability service-connected on the basis of new service department records must be adequately supported by medical evidence and will be assigned accordingly, except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c)(4). Under these circumstances (reopening based on new service department records), the provisions of 38 C.F.R. § 3.400(r) apply, which would essentially lead to the application of the rules of 38 C.F.R. § 3.156(c)(3)-(4), in conjunction with the provisions of 38 C.F.R. § 3.400(b)(2)(i). Historically, the Veteran filed an initial claim for service connection for burns which was received by VA on September 21, 1981. A November 1985 rating decision denied service connection for burn scars. At that time, the RO indicated that the Veteran's active duty service treatment records (STRs) were unavailable. However, in a February 2006 rating decision, the RO determined that new service department records had been received, and as such the Veteran's service connection claim had remained pending. 38 C.F.R. § 3.156(c) (2013). This decision also readjudicated the Veteran's September 1981 pending claim for service connection for burn scars, based upon receipt of the Veteran's STRs. The February 2006 rating decision granted service connection for scars, residual first and second degree burns, left pectoral area; residual burn scar left lower extremity; and residual burn scar, right thigh and right lower extremity, each assigned a noncompensable rating effective September 21, 1981, the date of receipt of the original claim for service connection. On July 13, 2006, the Veteran filed a claim, in pertinent part, for "s.c. scars, residual and second degree burns, left pectoral area; residual burn, right thigh and right lower extremity" and "asked that VA review his medical records since December 1982 in conjunction with his claim for compensation for scars." See July 2006 and July 2013 statements. Notably, in an August 2006 letter to the Veteran, the RO also characterized the July 2006 communication as claim for an increased rating for residuals of a burn scar to the left lower extremity. In this regard, the Board observes that the parties to the JMR apparently agreed with the contents of the Board's September 2011 decision, which considered that the July 2006 statement in support of claim was a claim for an increase (rather than a Notice of Disagreement (NOD)) to the February 2006 rating decision. Rather, the JMR directs the Board to consider an earlier effective date pursuant to 38 C.F.R. § 3.400(o)(2), which concerns the assignment of effective dates for an award of increased compensation (i.e., increased rating claim). In essence, the Board must conclude that February 2006 rating decision is final under 38 U.S.C.A. § 7105(c). While the Veteran argued prior to and since the February 2013 JMR that the February 2006 rating decision remains pending and asserts that VA should consider entitlement to higher ratings back to September 21, 1981 - the original date of service connection for the residuals of a burn scar to the left lower extremity - the terms of the JMR effectively preclude such consideration. Rather, had the JMR determined that the February 2006 rating decision remained pending, they would have directed the Board to consider the earlier effective date claim pursuant to 38 C.F.R. §§ 3.156(c)(3)-(4), 3.400(r), 3.400(b)(2), which apply to the assignment of effective dates for a reopened claim based on newly received service department records. Accordingly, the Board has limited the scope of the earlier effective date claim to consideration of 38 C.F.R. § 3.400(o)(2). In a November 2006 rating decision, the RO assigned a 10 percent rating for residuals of second and first degree burn scars to the left leg, effective July 13, 2006, the date of receipt of the Veteran's claim for an increased rating as per the RO's August 2006 determination. In October 2007, the Veteran filed a notice of disagreement with the November 2006 rating decision and requested an increased 10 percent rating for residuals of a burn scar to his left leg. As previously discussed and in accordance with the terms of the Joint Motion for Remand, the Board must consider whether there is any medical evidence between July 13, 2005 and July 13, 2006, making it factually ascertainable that the Veteran's residuals of a burn scar to the left lower extremity was 10 percent disabling. 38 U.S.C.A. § 5110(b) (2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In this case, the first medical evidence showing a "worsening" of the Veteran's residuals of a burn scar to the left leg was January 20, 2006, the date of the VA scars examination at which time Veteran had a scar on the left leg that measured 28 inches long and 8 inches wide (with irregular scar texture that measured 12 inches long by 8 inches wide). Application of 38 C.F.R. § 3.400(o)(2) entitles the Veteran to an earlier effective date of no earlier than January 20, 2006. However, in a July 2013 statement in support of his claim, the Veteran's representative essentially contended that the scar on the Veteran's left leg "did not change in the year prior to July 2006" which entitles him to an earlier effective date of July 13, 2005, for the assignment of the 10 percent disability rating. On review of the January 2006 VA examiner's clinical findings, it is likely that the Veteran had residuals of a burn scar to the left leg that measured 28 inches long and 8 inches wide in July 2005, six months prior to the January 2006 VA examination. Accordingly, given the facts noted above and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of July 13, 2005, but no earlier, for the assignment of a 10 percent rating for residuals of a burn scar of the left lower extremity, are met, based on a finding that it was factually ascertainable an increase in disability had occurred. In this case, there is no other evidence within one year of the receipt of claim for an increased rating for residuals of a burn scar to the left lower extremity reflecting a diagnosis or treatment of the Veteran's scar. Thus, no earlier rating is assignable on this basis. The Board also notes that there is no document of record that could constitute and earlier claim for an increased rating for residuals of a burn scar to the left lower extremity upon which an earlier effective date could be granted (within one year of the claim). ORDER A rating in excess of 10 percent for residuals of a burn scar to the left lower extremity is denied. An effective date of July 13, 2005, but not earlier, for the assignment of a 10 percent rating for residuals of a burn scar to the left lower extremity is granted, subject to the laws and regulations controlling the award of monetary benefits. REMAND Pursuant to the Board's September 2011 remand and by a June 2012 rating decision, the RO granted service connection and assigned a 20 percent disability rating for the Veteran's lumbar spine disability, effective July 28, 2004. In a July 2012 statement, the Veteran disagreed with the assignment of the 20 percent disability rating. In a January 2013 rating decision, the RO denied an initial rating in excess of 20 percent for the lumbar spine disability, but has not issued a statement of the case (SOC) that addresses the above-cited initial rating claim. The Board notes that, where a claimant files a notice of disagreement and the RO has not issued a SOC, the issue must be remanded to the RO/AMC for a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, on remand, the RO/AMC should provide the Veteran with a SOC that addresses the above-cited initial rating claim. Accordingly, the case is REMANDED for the following action: The RO/AMC should furnish the Veteran with a statement of the case pertaining to the issue of entitlement to an initial disability rating in excess of 20 percent for a lumbar spine disability. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs