Citation Nr: 1337323 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 08-13 008A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased rating for the residuals of a gunshot wound (GSW) of the right leg, currently evaluated at 10 percent disabling. 2. Entitlement to a compensable rating for headaches. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to September 1967. These issues come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating action of Department of Veterans Affairs Regional Office (RO) in Cleveland, Ohio. In that decision, the RO continued prior noncompensable ratings for service-connected right leg gunshot wound residuals and headaches. The RO also denied claims for service connection for bilateral hearing loss and tinnitus. In September 2008, the Veteran testified before a Decision Review Officer (DRO); a transcript of that hearing is of record. In October 2010, the RO awarded an increase to 10 percent for the right leg gunshot wound residuals from September 23, 2010. In May 2011, the Veteran testified before the undersigned at a Board hearing. A copy of the transcript has been associated with the file. In September 2011, the Board remanded the claims for further development. A September 2012 rating decision granted service connection for tinnitus. This is a full grant of the benefit sought and the remaining issues on appeal are as stated on the title page. In the July 2013 informal hearing presentation, the Veteran's representative raised the matters of entitlement to service connection for residuals of a traumatic brain injury (TBI) and a total disability rating based on individual unemployability. These matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for hearing loss and a compensable rating for headaches are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to September 4, 2008, the residuals of the GSW of the right leg were exhibited by a residual scar that is superficial, stable, measured 2 by 1 centimeters with slightly hyperpigmented skin and did not result in any muscle or nerve damage or cause any limitation of motion or loss of function. 2. For the period from September 4, 2008, the residuals of the GSW of the right leg were exhibited by a residual scar that is superficial, stable, measured 2 by 1 centimeters with slightly hyperpigmented skin and did not result in any muscle or nerve damage or cause any limitation of motion or loss of function. The scar was painful and tender. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the residuals of the GSW of the right leg for the period prior to September 4, 2008 are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes (DCs) 7800-7805 (2008, 2013). 2. The criteria for a 10 percent rating for the residuals of the GSW of the right leg for the period from September 4, 2008 are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes (DCs) 7800-7805 (2008, 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159 ). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. In a claim for increase, 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). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in October 2006, prior to the date of the issuance of the appealed July 2007 rating decision. The October 2006 letter also notified the Veteran of VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, no other development is required with respect to the duty to notify. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's May 2011 hearing, the undersigned identified the issues on appeal, including entitlement to an increased rating for residuals of the gunshot wound to the right leg. The Veteran provided testimony as to the symptoms of his right leg scar. The undersigned also asked the Veteran about any treatment for his service-connected scar in order to ensure that all relevant records were obtained. The duties imposed by Bryant were thereby met. VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified post-service VA treatment records. In September 2011, the Board remanded the claim, in relevant part, to obtain treatment records from the Cleveland VAMC and the Social Security Administration (SSA). Treatment records from the VAMC were obtained and associated with the claims file. In October 2011, VA was advised that the medical records from SSA were destroyed. In November 2011 correspondence, the Veteran was advised that VA attempted to obtain SSA records and have been unable to obtain such records. He was asked to submit the records himself or to advise VA of the location of such records. In August 2012, a formal finding of unavailability of SSA records was made and associated with the claims file. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. Therefore, there was substantial compliance with the September 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008). No other outstanding medical evidence has been identified. In addition, the Veteran was afforded a VA examination for residuals of a GSW to the right leg in March 2007 and September 2010. The Board finds, when taken as a whole, the reports of the examination and medical opinions reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Veteran has not reported any change in his scar symptoms since his last VA examination in September 2010, and the record does not otherwise show any changes. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time does not trigger need for a new VA examination, absent evidence of a change in the disability). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Legal Criteria & Analysis Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The residuals of the GSW of the right leg are currently rated under 38 C.F.R. § 4.118, DC 7805. The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments, however, are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. As his claim for service connection was received in August 2006, the amendments are not applicable in this instance and will not be applied in this case. On March 2007 VA examination, the Veteran reported complaints of occasional achiness and itchiness in the scar area. The examiner noted that the Veteran had no other complaints. There was no evidence of any muscle, nerve, artery, bone or joint damage. Examination revealed a 2 cm by 1 cm oval scar on the right lower extremity, the superior medial aspect. There scar was found not to be painful or tender, did not adhere to the underlying tissue, and was not elevated or depressed. The scar was superficial and caused no limitation of motion or limitation of function. There was no ulceration or breakdown of the skin and there was no inflammation, edema, or keloid formation. The color of the scar compared to normal skin was slightly darker, hyperpigmented throughout the entire length and width. There was no area of induration or inflexibility of the skin in the area of the scar. VA treatment records include a diagnosis of superficial scars. During a September 4, 2008 DRO hearing, the Veteran reported that if he stuck his finger into the wound, it hurt and was sore. During his September 2010 VA examination, the Veteran had complaints of a sore and tender scar of the right leg. On examination, the scar measured 2 cm by 1 cm, was not linear, and was ovoid in shape. There was no point of tenderness of the scar itself, but rather the entire area was diffusely tender to palpation. There was no adherence to the underlying tissue. The skin texture was slightly irregular. The scar was level, superficial, with no underlying soft tissue loss of damage. The scar was not deep. There was no inflammation, edema, or keloid formation. The skin was very mildly hyperpigmented in a 2 cm by 1 cm area. There was no induration or inflexibility of the skin, or limitation of motion, or other limitation of function caused by the scar. The scar was stable meaning that there was no frequent loss of covering of the skin over the scar, such as ulceration or breakdown of the skin. Photographs were taken. The examiner noted that the Veteran retired at age 48 in 1993 after 25 years of service for Ford Motor Company doing "experimental work". The Veteran did molding and was a core maker. He was independent in his activities of daily living. He went fishing and golfing "every once in a while." During his May 2011 Travel Board hearing, the Veteran indicated that he experienced some limitation of movement in regards to his residual scar. He indicated that it seemed as if his legs were going to buckle out from under him while walking up or down the stairs. He took Motrin for pain. He reported that the scar was approximately the size of a quarter. The above evidence reflects the Veteran has a residual scar of the GSW of the right leg that is superficial, stable, measured 2 by 1 centimeters, and with slightly hyperpigmented skin. During the March 2007 VA examination, the scar was found to be nontender. The Veteran complained of occasional aching and itching, but examination of the scar revealed no evidence of ulceration, limitation of function, pain or tenderness. At the September 4, 2008 DRO hearing, the Veteran complained that the wound was sore to touch. Diffuse tenderness to palpation in the scar area was found on September 2010 VA examination. In essence, there is no showing of significant residuals of the scarring prior to the September 2010 examination. Resolving all doubt in the Veteran's favor, the complaints that the wound was sore to touch at the September 4, 2008 hearing is evidence that the scar was symptomatic from that point. However, the March 2007 VA examination report does not reveal any significant findings, other than complaints of occasional itching and achiness. At no time during the appeal period did the Veteran exhibit muscle, neurological or bony damage attributable to the GSW. Diagnostic Code 7805, which provides that other scars are rated on limitation of function of the affected part, is not applicable in this case, the evidence shows that residual scar of the GSW of the right leg does not produce any limitation of function. Accordingly, the criteria for a compensable rating for the residuals of the GSW of the right leg for the period prior to September 4, 2008 are not met. However, symptoms associated with the Veteran's service-connected residual scar of the GSW of the right leg approximate the criteria for a 10 percent disability rating under the Diagnostic Code 7804 from September 4, 2008. Under the pre-amended version of Diagnostic Code 7804, a 10 percent evaluation is assigned where the evidence shows scars that are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Therefore, the residual scar of the GSW of the right leg warrants assigned the maximum evaluation under Diagnostic Code 7804 from September 4, 2008. In regards to whether a rating in excess of 10 percent is warranted, Diagnostic Codes 7802 and 7803 also only provide for a maximum 10 percent evaluation for scars. Also, as the service-connected residual scar of the GSW of the right leg is comprised of only one scar, there is no basis to separately rate and combine a rating in accordance with § 4.25 for scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, under Diagnostic Code 780-2, Note (1). Diagnostic Code 7800, provides higher ratings for scars of the head, face, or neck; but as the Veteran's residual scar of the GSW of the right leg is not on those parts of the body, Diagnostic Code 7800 would not be applicable. Under the pre-amended Diagnostic Code 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas exceeding 6 square inches (39 square cm.). A 20 percent disability evaluation is warranted for when it involves an area or areas exceeding 12 square inches (77 square cm.). A 30 percent disability evaluation is warranted when it involves an area or areas exceeding 72 square inches (465 square cm.). A 40 percent evaluation is warranted when it involves an area or areas exceeding 144 square inches (929 square cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2008). Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. Thus, in order for the Veteran to get an increased evaluation for his residual scar of the GSW of the right leg under the old regulations, the evidence must show that his scar exceeds at least 12 square inches or 77 square cm and was deep or caused limited motion. The Veteran suggested during his May 2011 Travel Board hearing that the residuals of the GSW of the right leg affected his limitation of motion. These complaints have also been considered, however, such complaints are inconsistent with the clinical evidence of record, which has consistently shown a scar that is superficial and tender with no evidence of underlying tissue loss (i.e. a deep scar), or limitation of motion. It has neither been alleged nor shown that the affected area approximated at least 12 square inches or at least 77 square centimeters to warrant rating higher than 10 percent under Diagnostic Code 7801. During the appeal period, the largest the residual scar of the GSW of the right leg was recorded was 2cm by 1 cm. Overall, the subjective and objective evidence does not show the severity required for a higher schedular rating based on the applicable symptomatology. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign residual scar of the GSW of the right leg a compensable rating prior to September 4, 2008 or in excess of 10 percent from September 4, 2008. Extraschedular Rating Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The Board must specifically address whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to 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 evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a 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), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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"). There is no allegation or evidence of exceptional factors in this appeal with regard to the Veteran's service-connected residual scar of the GSW of the right leg. All of the symptoms experienced by the Veteran described above are contemplated by the appropriate diagnostic criteria as set forth above. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER A compensable rating, for residuals of a GSW of the right leg for the period prior to September 4, 2008 is denied. A 10 percent rating, for residuals of a GSW of the right leg for the period from September 4, 2008 is allowed, subject to the regulations governing the award of monetary benefits. REMAND As indicated in the introduction, the Veteran's representative raised a claim of service connection of residual mortar trauma with TBI. The Board notes that on March 2007 VA examination report, an examiner noted that the Veteran was a paratrooper in service and gave a diagnosis of hearing loss and tinnitus secondary to remote barotraumas. The Veteran was afforded a VA audiological evaluation in November 2011. The examiner opined that it was less likely as not that the Veteran's hearing loss was related to an event in military service. Among other things, the examiner noted that the Veteran reported that he was in the infantry and there was an incident in Vietnam when he was blown from a bomb crater resulting in a concussion and loss of consciousness. However, the examiner stated that as per the Veteran's testimony, he reported that most of his problems were on the right side of his body after he was blown out of a hole and at the current examination, his right ear hearing was better than his left ear hearing. In the July 2013 informal hearing presentation, the Veteran's representative indicated that an individuals' hearing crosses both hemispheres of the brain and that the Veteran's left ear hearing loss is consistent with right hemisphere traumatic brain injury. The Board also notes that the same examiner found that it was at least as likely as not that the Veteran's tinnitus was related to a traumatic brain injury and based on this opinion service-connection for tinnitus was granted in a September 2012 rating decision. The Veteran's representative indicated that the Veteran's headache condition is inextricably intertwined with the Veteran's residuals TBI claim. See July 2013 informal hearing presentation. The AOJ has not adjudicated the claim of residual mortar trauma with TBI and the Board is precluded from adjudicating this claim in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 333-34 (2006). The residual mortar trauma with TBI issue is inextricably intertwined with the claims of service connection for hearing loss issue and a compensable rating for headaches because a favorable decision with respect to the residual mortar trauma with TBI claim could affect the outcome of the hearing loss and headache claims. See also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, the Board must defer adjudication of the appeal for entitlement to service connection for hearing loss and entitlement to a compensable rating for headaches until the issue raised by the November 2011 VA examination and by the Veteran's representative in July 2013 is adjudicated. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall adjudicate the Veteran's claim of residual mortar trauma with traumatic brain injury. This issue shall not be certified to the Board unless a sufficient substantive appeal is submitted. The issues of entitlement to service connection hearing loss and a compensable rating for headaches should then be re-adjudicated. 2. If any benefit for which a sufficient substantive appeal has been submitted remains denied and additional relevant evidence is received, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran is advised that failure to report for his scheduled examination may result in the denial of his claim for an increased rating. 38 C.F.R. § 3.655 (2013). The Veteran is advised that failure to report for his scheduled examination may result in the denial of his claim for an increased rating. 38 C.F.R. § 3.655 (2013). 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs