Citation Nr: 1336685	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  12-10 223	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina



THE ISSUE

Entitlement to a rating in excess of 10 percent for a left side thoracotomy scar.



ATTORNEY FOR THE BOARD

S. Stanley, Associate Counsel










INTRODUCTION

The appellant is a Veteran who served on active duty from August 1986 to August 2006.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for a left side thoracotomy scar, rated 10 percent, effective March 2, 2010.  

The Veteran's record is now in the jurisdiction of the Winston-Salem, North Carolina RO. 

The issue of service connection for pathology (including two additional scars) other than a scar as residuals of a thoracotomy in service has been raised (see statement by Veteran's wife and the substantive appeal received in April 2012), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

At no time during the appeal period is the Veteran's left side thoracotomy scar shown to have been deep and nonlinear with an area of at least 12 square inches (77 sq. cm.); the scar is not shown to cause any limitation of function.


CONCLUSION OF LAW

An initial rating in excess of 10 percent for left side thoracotomy scar is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.2, 4.7, 4.10, 4.14, 4.118, Diagnostic Codes (Codes) 7801-7805 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veteran Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.

Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See Pelegrini v. Principi 18 Vet. App. 112, 120-21 (2004).  

VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim:  1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

A March 2010 letter, prior to the initial adjudication of the claim, notified the Veteran of the evidence needed to substantiate his claim for service connection, informed him that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was responsible for providing any necessary releases [for private records] and enough information about the records to enable VA to request them from the person or agency that had them.  He was informed of how ratings and effective dates are assigned and was given examples of the evidence he could submit.  The Board finds that VA has fulfilled its VCAA-mandated notification duty.

The Veteran's service treatment records (STRs) and VA treatment records have been secured for the record.  He was afforded a VA examination in May 2010.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the resulting examination report is adequate for rating purposes, as it reflects review of the record and contemplates the relevant medical evidence and lay assertions therein and includes notation of all pertinent clinical findings.  The Veteran has not identified any pertinent evidence that remains outstanding.  The Board finds that VA's duty to assist in met.

Factual Background, Legal Criteria, and Analysis

Initially, the Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in VA's electronic data storage systems, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's STRs show that during service he had a left posterior mediastinal mass and in February 1989 underwent thoracotomy to remove the mass.  

On a May 2010 VA scars examination, the Veteran reported localized pain at the incision site, aggravated upper body motion, with local tenderness.  He did not report ulcerations or breakdown.  The VA examiner noted there was a surgical scar on the left side of the chest extending around to the back, 36 centimeters in length and five millimeters in width throughout.  The scar was noted to be nontender, and there was no related limitation of motion or function.

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 practicably be 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.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

As this is an appeal from the initial rating assigned with a grant of service connection, "separate ratings can be assigned for separate periods of time based on facts found."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  [The Board finds that staged ratings are not warranted as the Veteran's symptoms have not varied significantly during the appeal period (i.e. since March 2, 2010, the effective date of the award of service connection and the 10 percent rating).]

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R.     § 4.7.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt, including regarding degree of disability, to be resolved in favor of the claimant.  38 C.F.R. §§ 3.102, 4.3.

Scars that are not on the head, face, or neck are rated under Codes 7801, 7802, 7804, and 7805.  Code 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear.  Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent disabling.   Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent disabling.  Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent disabling.  Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent disabling.  Note (1) (following) provides that a deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118.

Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater.  Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.  Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are painful or unstable.  Note (1) provides that an unstable scar is where, for any reason, there is frequent loss of covering of skin over the scar.  Under Code 7805, scars are evaluated for any disabling effects not considered in a rating under Codes 7800 to 7804 under an appropriate other Code.  38 C.F.R. § 4.118.

The Veteran's left side thoracotomy scar has been rated 10 percent under Code 7804.  To determine if an increased rating is appropriate, the Board must look to schedular criteria that would afford a rating in excess of 10 percent.  The diagnostic codes that provide for ratings in excess of 10 percent for the Veteran's scar are Codes 7801, 7804, and 7805.

The findings shown by the record do not warrant a 20 percent rating of the Veteran's left side thoracotomy scar under Code 7801.  The left side thoracotomy scar (which is shown to be 36 by .5 cm) is not shown to involve an area of at least 12 square inches (77 sq. cm.) so as to warrant a 10 percent rating under Code 7801.

The Veteran alleges he has two additional scars (that are tender or painful and should be considered in the rating).  See his April 2012 VA Form 9.  Any such scars were not reported to, or noted by the VA examiner, are not otherwise shown by the record, and have not been established as service connected.  Therefore, they may not be considered in rating the disability at issue. 

Code 7805 provides for rating scars based on limitation of function of the affected part.  38 C.F.R. § 4.118.  The VA examiner noted there is no induration, inflexibility, limitation of motion, or decreased function directly attributable to the scar.  The record does not reflect or suggest, and the Veteran does not allege, any additional functional limitations due to his thoracotomy scars (other than pain which is specifically recognized by the current rating assigned).  Therefore, a separate rating under Code 7805 would be inappropriate.  

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1)  in the first instance but not from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for an extraschedular rating.  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, 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.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  See VAOGCPREC 6-96 (Aug. 16, 1996).  

Here, a comparison between the level of severity of the symptoms shown with the criteria in the rating schedule found no symptoms or impairment (due to the scar, itself) not accounted for by the scheduler criteria.  Therefore, the scheduler criteria are not inadequate and referral for extraschedular consideration is not warranted. 

Finally, it is not alleged (or suggested by the record) that the thoracotomy scar prevents the Veteran from engaging in gainful employment.  Hence, the matter of entitlement to a TDIU rating is not raised in the context of the instant claim for increase.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


ORDER

The appeal seeking a rating in excess of 10 percent for a left side thoracotomy scar is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs