Citation Nr: 1338007	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  10-47 909	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial rating for right ankle degenerative changes in excess of 10 percent prior to September 8, 2005, and in excess of 20 percent thereafter. 

2.  Entitlement to an initial rating in excess of 10 percent for tinnitus. 

3.  Entitlement to a compensable rating for a left eye scar.

4.  Entitlement to a compensable rating for a right eye scar.

5.  Entitlement to a compensable rating for osteoma.

6.  Entitlement to a compensable rating for a left upper back scar.

7.  Entitlement to an initial compensable rating for erectile dysfunction.

8.  Entitlement to a rating in excess of 10 percent for a left ankle condition.

9.  Entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis. 

10.  Entitlement to a compensable rating for left ear hearing loss.

11.  Entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU). 


REPRESENTATION

Appellant represented by:	Kenneth LaVan, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to September 1969, July 1974 to July 1978, May 1980 to September 1980, October 1984 to July 1987, October 1987 to March 1988, and June 1988 to June 1997, and also had periods of active duty for training.

These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2009, April 2010, and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In June 2013, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is included in the claims file.  

In August 2013, the Veteran's attorney submitted additional evidence to the Board along with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304(c) (2013).

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 

The issues of a rating in excess of 10 percent for a left ankle condition, a rating in excess of 10 percent for lumbar spine degenerative arthritis, a compensable rating for left ear hearing loss, and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  Prior to the promulgation of a decision in the appeal, the Veteran withdrew on the record his substantive appeal concerning the issues of entitlement to an initial rating for right ankle degenerative changes in excess of 10 percent prior to September 8, 2005, and in excess of 20 percent thereafter, an initial rating in excess of 10 percent for tinnitus, a compensable rating for a left eye scar, a compensable rating for a right eye scar, and a compensable rating for osteoma.

2.  The Veteran's left upper back scar causes pain and itching, and is linear, superficial, stable, 7 by 2 centimeters, and not productive of functional impairment.  

3.  The Veteran has erectile dysfunction but no deformity of the penis.



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal concerning the issues of entitlement to an initial rating for right ankle degenerative changes in excess of 10 percent prior to September 8, 2005, and in excess of 20 percent thereafter, an initial rating in excess of 10 percent for tinnitus, a compensable rating for a left eye scar, a compensable rating for a right eye scar, and a compensable rating for osteoma have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

2.  The criteria for a rating of 10 percent, but no greater, for a left upper back scar have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801 to 7805 (2013).

3.  The criteria for an initial compensable rating for erectile dysfunction have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.350, 4.1, 4.3, 4.7, 4.20, 4.27, 4.31, 4.115b, Diagnostic Codes 7522, 7523 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202, 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  Here, the Veteran withdrew the claims of an initial rating for right ankle degenerative changes in excess of 10 percent prior to September 8, 2005, and in excess of 20 percent thereafter, an initial rating in excess of 10 percent for tinnitus, a compensable rating for a left eye scar, a compensable rating for a right eye scar, and a compensable rating for osteoma on the record at the June 2013 Board hearing.  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these claims, the Board does not have jurisdiction to review them, and they are dismissed.

II.  Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  

The Board notes 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).


Left Upper Back Scar

The Veteran's left upper back scar is rated under Diagnostic Code (DC) 7805.  Scars not of the head, face, or neck are rated under 38 C.F.R. § 4.118, DCs 7801 to 7805.

Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are rated under 38 C.F.R. § 4.118, DC 7801.  A deep scar is one associated with underlying soft tissue damage.  

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 rating.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, DC 7802.

For scar(s) that are unstable or painful: five or more scars that are unstable or painful warrant a 30 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; one or two scars that are unstable or painful warrant a 10 percent rating.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  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.  Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118, DC 7804. 

For scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, DC 7805.

In this case, as reflected in the his June 2013 Board hearing testimony, the Veteran asserts that his scar, located on his upper left shoulder in the back, a residual of malignant melanoma, constantly itches and is irritated.  Considering the pertinent evidence in light of the governing legal authority, the Board finds that a rating of 10 percent for the Veteran's left upper back scar, but no more, must be granted. 

The report of an October 2010 examination provided by VA reflects that the Veteran reported a scar of the shoulder blade caused by surgery for melanoma in July 1994.  His current reported symptoms included pain, "bulging" of skin, and chronic itching.  The Veteran reported not experiencing any functional impairment due to the scar.  On examination, there was a scar precisely located status post left upper back.  The scar was linear, measured 7 centimeters (cm) by 2 cm.  It was not painful on examination, there was no skin breakdown, and it was superficial with no underlying tissue damage.  Inflammation and edema were absent.  There was no keloid formation, the scar was not disfiguring, and there was no limitation of motion or function due to the scar.  

Although it was noted by the examiner that the Veteran's scar was not painful on examination, it was also noted by the examiner that the Veteran reported pain and chronic itching of the scar.  Given this, in combination with the Veteran's testimony before the Board, and resolving reasonable doubt in the Veteran's favor, the Board finds that his left upper back scar approximates one painful scar.  Thus, under a 10 percent rating for the scar is warranted under DC 7804.

However, a rating greater than 10 percent is not warranted.  The record does not reflect, and the Veteran has not contended, that he has more than one such painful scar that is a residual of his left upper back melanoma.  Also, the record reflects that the Veteran's scar is linear, superficial, stable, only 7 by 2 cm, and not productive of functional impairment.  In this regard, the Veteran testified in June 2013 that the skin of his scar did not ever break open and bleed or cause any limitation of motion in his arm or shoulder.  Essentially, the Veteran contends that his scar causes itching and discomfort.

The Board notes the Veteran's and his attorney's assertions during the June 2013 hearing that, while no keloid formation was found on the Veteran's scar during the October 2010 VA examination, the Veteran had a keloid formation now.  However, even assuming the competency and credibility of the Veteran and his attorney to make such a determination, there is no indication of how this might affect the rating of the Veteran's scar or how a rating higher than 10 percent might be warranted based on this finding.  The Board has taken this into consideration in awarding the Veteran the 10 percent evaluation.  

Erectile Dysfunction

In the April 2010 rating decision, the RO granted service connection for erectile dysfunction and assigned a noncompensable rating, effective January 5, 2010.  In the same rating decision, the Veteran granted special monthly compensation (SMC) based on loss of use of a creative organ pursuant to 38 C.F.R. § 3.350, also effective January 5, 2010.

The Veteran's erectile dysfunction is rated under Diagnostic Code (DC) 7599-7522, and is thus rated by analogy under the criteria for deformity of the penis.  See 38 C.F.R. §§ 4.20, 4.27.  

Under DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating.  A note to DC 7522 indicates that entitlement to SMC under 38 C.F.R. § 3.350 should be reviewed.  38 C.F.R. § 4.115b, DC 7522.  

Where the schedular criteria does not provide for a noncompensable rating, such a rating shall be assigned when the requirements for a compensable rating not met.  38 C.F.R. § 4.31.

Considering the pertinent evidence in light of the above, the Board finds that a compensable rating for the Veteran's erectile dysfunction is not warranted at any time since the January 5, 2010, date of service connection. 

While the record reflects erectile dysfunction, it reflects no deformity of the penis.  On October 2010 VA examination, erectile dysfunction was noted and physical examination of the genitalia was declined.  There is no indication elsewhere in the medical record of any penis deformity, and the Veteran has not contended any.  Thus, the objective evidence provides no basis for award of the 20 percent rating under DC 7522. 

The Board has also considered the applicability of other diagnostic codes for rating the disability on appeal, but finds that no other diagnostic code provides a basis for a higher rating.  While a compensable rating is assignable for atrophy of both testes (see 38 C.F.R. § 4.115b, DC 7523), here, the record does not reflect, and the Veteran has not contended, that either testis is atrophied.  The Veteran's service-connected erectile dysfunction also has not been shown to involve any factors that warrant evaluation under any other provisions of VA's rating schedule.  

In short, there is simply no legal basis for any higher rating for the Veteran's service-connected erectile dysfunction.

Extraschedular Consideration

This case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b).  

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, which involves 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

In this case, the record does not reflect that the average industrial impairment from the Veteran's disabilities would be in excess of that contemplated by the assigned ratings.

The Veteran's left upper back scar causes pain and itching, approximates one painful scar, and is linear, superficial, stable, 7 by 2 centimeters, and not productive of functional impairment.  Such disability is reasonably contemplated by the schedular criteria for a 10 percent rating under DC 7804, which contemplates a painful scar, not of the head, face, or neck.  The record does not reflect that the Veteran's left upper back scar has caused impairment in earning capacity above what would be average for such disability.  

The Board acknowledges the Veteran's and his attorney's contentions, as reflected in a June 2013 brief and in statements made during the June 2013 Board hearing, that extraschedular consideration is warranted for erectile dysfunction based on the Veteran's loss of consortium with his wife and the affect on his personal relations with his wife.

However, from the date of service connection, the Veteran has received SMC  (which, generally, considers the Veteran's concern and contentions) based on loss of use of a creative organ, and his erectile dysfunction has otherwise shown no deformity of the penis or other manifestation of disability.  Such disability is reasonably contemplated by the schedular criteria for a noncompensable rating with SMC under DC 7522, which contemplates disability of the nature and severity of disability producing loss of a creative organ but no deformity of the genitalia.

Also, the record does not reflect, and the Veteran has not asserted, that either disability has been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to either such disability.

In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral for extraschedular consideration.

Accordingly, resolving reasonable doubt in the Veteran's favor, a rating of 10 percent, but no greater, for a left upper back scar must be granted, an initial compensable rating for erectile dysfunction must denied, and no staged rating of either disability is warranted pursuant to Hart or Fenderson.  In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine.  However, to the extent that the preponderance of the evidence is against the assignment of any higher rating at any time, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.

III.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

In the present case, the award of service connection for erectile dysfunction represented a substantiation of the Veteran's original claim, and thus the filing of a notice of disagreement with the assigned rating did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements.  Therefore, any defect as to notice is not prejudicial.  See Dingess/Hartman, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements).  Required notice pertaining to the Veteran's left upper back scar claim was provided by letter dated in September 2010, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman.  

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.   See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Veteran's service treatment records and VA medical treatment records have been obtained.  Also, the Veteran was provided an examination by VA in October 2010.  The examination and its associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims.  The report was based on examination of the Veteran by a physician with appropriate expertise.  38 C.F.R. § 3.159(c)(4) (2013); Barr, 21 Vet. App. 303.  

Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

ORDER

The issue of entitlement to an initial rating for right ankle degenerative changes in excess of 10 percent prior to September 8, 2005, and in excess of 20 percent thereafter, is dismissed.

The issue of entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed.

The issue of entitlement to a compensable rating for a left eye scar is dismissed.

The issue of entitlement to a compensable rating for a right eye scar is dismissed.

The issue of entitlement to a compensable rating for osteoma is dismissed.

A rating of 10 percent, but no greater, for a left upper back scar is granted, subject to the laws and regulations controlling the award of monetary benefits.

An initial compensable rating for erectile dysfunction is denied.


REMAND

Regarding the increased rating claims for a left ankle condition, lumbar spine degenerative arthritis, and left ear hearing loss, in a June 2013 brief, for each such disability, the Veteran's attorney asserted that the Veteran had stated to the attorney in recent conversations that the disability had increased in severity since the most recent VA examination of such disability, and requested a new medical opinion to determine the current severity of each.  

The Veteran's left ankle and hearing loss were most recently examined in October 2010, and his lumbar spine arthritis was most recently examined in January 2010.  As reflected in the June 2013 brief, as well as the his June 2013 testimony, the Veteran asserts that he experiences increased problems hearing in background noise and worsening pain in his left ankle, as he has had to put more pressure on it due to the worsening condition of his right ankle.  He also asserted that he now experiences frequent back spasms and further decreased range of motion, as well as pain radiating down his right leg.  

In light of this, the Veteran should be afforded new VA examinations of his left ankle, lumbar spine, and hearing loss in order to determine the current nature and severity of his disabilities.  See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); VAOPGCPREC 11-95 (1995). 

As the Veteran's TDIU claim is inextricably intertwined with the increased rating claims remaining on appeal, it must also be remanded.  See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 


Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA medical records related to the Veteran's left ankle, lumbar spine, and hearing loss from the Washington, DC, VA Medical Center, dated from June 2013 to the present (if any).  All records and/or responses received should be associated with the claims file.  

2.  Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his left ankle condition.  The claims file should be made available to the examiner in conjunction with the examination.  Any medically indicated special tests should be accomplished.  The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria.  The examiner should comment on the effect of the Veteran's disability on his ability to be employed (if possible but not required).

3.  Schedule the Veteran for a VA spine examination to determine the current severity of his service-connected lumbar spine disorder.  The claims file must be provided to the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies, to include those required to objectively document neurologic manifestations of the Veteran's service-connected disorder must be accomplished.  As to all information requested below, a complete rationale for all opinions must be provided. 

The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine range of motion, in degrees, noting by comparison the normal ranges of motion of the spine.  It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's lumbar spine disorder, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination.  Furthermore, an opinion must be given as to whether any pain associated with the Veteran's lumbar spine disorder could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups.

Any neurological manifestations of the Veteran's service-connected lumbar spine degenerative arthritis must be identified, including any numbness of the legs.  It must also be noted whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months.  The examiner should comment on the effect of the Veteran's disability on his ability to be employed (if possible but not required).

4.  Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his left ear hearing loss.  The claims file should be made available to the examiner in conjunction with the examination.  Any medically indicated special tests should be accomplished.  The examiner should report the extent of the Veteran's disability in accordance with VA rating criteria.  The examiner should comment on the effect of the Veteran's disability on his ability to be employed (if possible but not required).

5.  After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal.  If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his attorney, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the 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).



______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs