Citation Nr: 1338621 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-11 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for burns of the scalp, neck, back, shoulders, and arms. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from November 1944 to August 1946. This appeal comes to the Board of Veterans' Appeals (Board) from September and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May and July 2013, the Board remanded these issues to the originating agency for further development. The case has been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT 1. For the entire period of the claim, the Veteran's service-connected burns of the scalp, neck, back, shoulders, and arms have been manifested by a deep scar of the left upper extremity, which is stable, non-tender, non-painful, and productive of no functional impairment; and by areas of hypopigmentation of the left upper extremity, back, and buttocks with no scars and no impairment of functioning. 2. At no time during the period of the claim have the burns been manifested by scarring or disfigurement the head, face, or neck. 3. At no time during the period of the claim have the service-connected disabilities been sufficient by themselves to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for burns of the scalp, neck, back, shoulders, and arms are not met 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7801 (2013). 2. The criteria for a TDIU are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided adequate VCAA notice for claim for increased rating for burns of the scalp, neck, back, shoulders, and arms by a June 2009 letter, and for his claim for TDIU by a November 2009 letter. These letters respectively preceded the appealed September 2009 RO rating action denying an increased rating for burns of the scalp, neck, back, shoulders, and arms, and his appealed December 2009 RO rating action denying a TDIU. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claims. In this regard, the record reflects that all pertinent available medical evidence identified by the Veteran has been obtained, to include private and VA outpatient treatment records. In addition, the Veteran has been afforded appropriate VA examinations in connection with the claims decided herein. Specifically, the most recently obtained skin examination in September 2013 addressed the Veteran's service-connected burn residuals in sufficient detail, including providing an account of the nature of the burn scars and any effect on functioning of underlying parts as well as overall functioning (finding none for affect on functioning of underlying parts or overall functioning) and addressing additionally identified post-surgical scars over the right shoulder as unrelated to the Veteran's service-connected burn residuals. The report of the September 2013 psychiatric examination provides an assessment of the nature of the Veteran's service-connected posttraumatic stress disorder (PTSD) and its impact on functioning, differentiating this disorder and its resulting functional impairment from that attributed to other mental impairment, most specifically cognitive disorder, dementia or Alzheimer's dementia. Both of these September 2013 examiners addressed the impact of these service-connected disorders on the Veteran's capacity to be gainfully employed, in furtherance of the TDIU claim. The September 2013 skin examiner also addressed the separate and combined impacts of the Veteran's service-connected disabilities on the Veteran's employability. Finally, the Board notes that the September 2013 examination reports are in compliance with the Board's remand directives. The Appeals Management Center (AMC) additionally substantially fulfilled the other requirements of these remands, including affording the Veteran the opportunity to submit evidence or argument in furtherance of his claims, obtaining indicated treatment records, and AMC readjudication of the claims with issuance of an SSOC prior to return of the claims to the Board. The AMC has thus satisfactorily completed development in substantial compliance with the Board's April 2013 and July 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not asserted, and the evidence of record does not show, that his service-connected burns of the scalp, neck, back, shoulders, and arms, posttraumatic stress disorder (PTSD), or hepatitis has increased significantly in severity since the most recent examinations. The Veteran and his authorized representative have not identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims on appeal. II. Burdon of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102 , 4.3 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Increased Rating for Burns A. General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1 (2013). In all cases, the Board attempts to determine the extent to which the Veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2013). 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). B. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1 , 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant a lengthy exposition of remote clinical histories and findings pertaining to the disability. The Board notes that the regulations related to the rating of scars were revised effective October 23, 2008. See 73 Fed. Reg. 54710 (Sept. 23, 2008). Because the Veteran's claim was received subsequent to the change in rating criteria, the current (new) rating criteria apply. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The record reflects that the Veteran incurred burns in a hot tar accident in service, with the tar poured from above and landing on the Veteran's head, right side of the face, neck, shoulders, back, buttocks, and arms. However, a June 1946 hospitalization record reflects that the burns had healed well without the need for skin grafts. Following separation from service, the Veteran was granted service connection for scars from the burns and the disability was assigned a 40 percent rating, effective from June 1947. That rating has remained in place since then. Records over the years, however, reflect that the burn residuals substantially healed over most of the affected parts, so that upon a skin evaluation in 1963 there were noted to be no scars of the back, buttocks, or right side of the face. More recent records reflect still fewer residuals remaining. In connection with the current claim, the Veteran was afforded a VA examination in June 2013. The examiner noted the Veteran's history of burns. The examination revealed a 20 centimeters (cm) by 2 cm scar over the left deltoid and bicep, and another, round 3 cm scar in the left deltoid area. The examiner also observed hypopigmented areas of burn residuals without scarring over the left shoulder and upper arm, which extended over a 15 cm by 26 cm area. The examiner noted that the Veteran also had scars over the right shoulder area but these were not related to service. They were from a right rotator cuff repair in 1982. Additionally observed were small hypopigmented areas without scar on the back and buttocks. The examiner found no functional impairments from the observed scars. An additional VA scars examination was conducted in September 2013, and this examiner's findings were consistent with those in June 2013. The September 2013 examiner observed the scars of the left upper extremity in the same locations and dimension as were noted in June 2013. The examiner further noted that these scars were not painful or tender, with no sign of skin breakdown, no interference with movement of the shoulder, and no other impact on functioning. While the scars of the left upper extremity were deep and keloidal, they showed no signs of inflammation, edema, or keloid formation (no active changes). This examiner also noted that the surgical scar residuals over the right shoulder were unrelated to service. While the Veteran had limitation of motion of the left shoulder, the examiner noted that this was due to impairment in the joint and not due to the service-connected scars. The September 2013 examiner concluded that the residual scars did not cause functional impairment or impact activities of daily living, and presented no current disability. The Board has carefully reviewed the record and finds the June 2013 and September 2013 examiners' findings to be consistent with each other and with other recent evidence of record, reflecting that while the Veteran has been rated for his burns of the scalp, neck, back, shoulders, and arms on the basis of scars or disfigurement of the head, face, or neck under Diagnostic Code 7800, a higher rating is not warranted under that Code because the Veteran no longer has visible scars or disfigurement of the head, face, or neck as a residual of the in-service tar burns. While the Veteran has remaining scarring of the left upper extremity/ shoulder area, these are appropriately rated under Diagnostic Code 7801 for burn scars that are deep and nonlinear, but are not of the head, face or neck. Under that code, a maximum 40 percent rating is assignable for scars of an area of 144 square inches / 929 square cm, or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801. The identified residual scars of the left upper extremity have thus already been assigned the maximal rating under the applicable code, and a higher rating is thus not warranted on a schedular basis. The weight of the evidence is against any additional or higher rating being warranted for the noted burn-residual hypopigmented areas over the left shoulder and left upper arm, and the small burn-residual hypopigmented areas over the back and buttocks. These are found not to be scars; are not over the head, face, or neck; are not in exposed areas; and present no functional impact or impairment. The Board has considered the statements of the Veteran, and he is certainly competent to address the nature or appearance of his scars and hypopigmentation residuals. However, he has not complained of symptoms or impairment medically attributed to his service-connected burns of the scalp, neck, back, shoulders, and arms, which would warrant a higher or additional rating. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 40 percent rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. The Board has also considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Board finds that the disabling manifestations of the disability are contemplated by the schedular criteria. IV. TDIU A. Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1) , 4.15 (2013). "Substantially gainful employment" is that employment, "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a) . In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the Veteran's earned annual income. . . ." A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341 , 4.16, 4.19. For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. B. Factual Background and Analysis The Veteran has contended, in effect, that his service-connected disabilities render him incapable of obtaining or sustaining substantially gainful employment. The Veteran is service connected for posttraumatic stress disorder (PTSD), rated 70 percent disabling; for the above-addressed residuals of burns of the scalp, neck, back, shoulders, and arms, rated 40 percent disabling; and for hepatitis, rated noncompensably disabling. The Veteran was afforded recent examinations addressing these service-connected disabilities, and the Board finds that the findings and conclusions of the examiners are substantially consistent with and supported by the balance of the evidentiary record as it pertains to the question of unemployability. The Board has also considered the Veteran's lay assertions. However, the Board finds that these lay assertions of unemployability due to service-connected disabilities are markedly outweighed by the balance of the evidence of record. Specifically, objective evidence of record shows significant non-service-connected disability impairing of and indeed precluding the Veteran from working, and includes clear, consistent, and rationally and medically supported medical opinions against the claim. These medical opinions are substantially and convincingly supported by objective evidence. As discussed above, the weight of the evidence is to the effect that the Veteran's service-connected residuals of burns of the scalp, neck, back, shoulders, and arms - consisting of some deep scarring of the left upper extremity which is not painful, unstable, or impairing of functioning of underlying parts, and additional hypopigmented areas involving nonexposed surfaces that are also productive of no functional impairment. The Board rated the Veteran's PTSD in May 2013. At that time, the Board recognized that the Veteran had been diagnosed with other mental disorders which were not service connected, including major depression, and cognitive disorder not otherwise specified (NOS), which was also characterized as dementia NOS and Alzheimer's dementia. Because these other mental or cognitive disorders had not been medically differentiated from the Veteran's service-connected PTSD, the Board considered all of the Veteran's mental impairment in rating his PTSD. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). However, the Veteran's PTSD was again evaluated by a VA examiner in September 2013, and this examiner differentiated the Veteran's PTSD from cognitive impairments variously characterized. The examiner observed that the dementia had only been present for the past five years, and that there were no cognitive impairments secondary to the Veteran's PTSD. The examiner did find that the Veteran had symptoms associated with his PTSD and additional symptoms associated with his dementia, and all together suffered from depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulties in establishing and maintaining effective social and work relationships, and difficulties adapting to stressful circumstances, including work. However, the examiner also observed that the Veteran remained married to his wife of 60 years, that he traveled occasionally, that he continued to go out to restaurants, that he enjoyed watching the news, that his gardening activities were now limited by physical impairments, and that he enjoyed going out to listen to music at a cultural center. The examiner noted that the Veteran graduated high school and had two years of college education, and that he had a long career in construction including years as a construction foreman, with retirement in 1982 due to syringomyelia, a non-service-connected disability. The Veteran was noted to be no longer capable of handling his financial affairs (which were now attended to by his wife) due to his dementia. The September 2013 examiner ultimately concluded that the Veteran was occupationally impaired by his dementia but not by his PTSD. This conclusion is consistent with the conclusion of the VA examiner who examined the Veteran for his scars in September 2013, and is also consistent with past psychiatric evaluations showing that his occupational impairments were associated with dementia-related symptoms. The September 2013 scars examiner also addressed whether all the Veteran's disabilities, either singly or taken as a whole, rendered him incapable of obtaining or sustaining employment. This examiner noted the past psychiatric findings including the September 2013 psychiatric examiner's differentiation of the Veteran's PTSD from his cognitive disorder/dementia and finding of no work impairment associated with the Veteran's PTSD. The scars examiner also noted past clinical and diagnostic findings of no hepatitis disability. The September 2013 scars examiner thereby concluded that the Veteran's scars, hepatitis, and PTSD did not, considered either separately or as a whole, result in disability impairing work functioning. Reviewing the record as a whole, the Board finds that the conclusions of the recent VA examiners in September 2013 are substantially supported by past medical findings and conclusions, and by current findings and conclusions, to the effect that the Veteran is not precluded from obtaining or sustaining substantially gainful employment by his service-connected PTSD, burn residuals, and hepatitis. The weight of the evidence is to the effect that dementia and not PTSD is impacting work and work-like functioning, that the Veteran's service-connected burn residuals are not impairing and not otherwise preclusive of gainful activities, and the Veteran's hepatitis is not disabling. In making these determinations, the Board recognizes and accepts as supported by the weight of the evidence, the September 2013 psychiatric examiner's conclusion that the Veteran's PTSD is distinct from his cognitive disorder/dementia, and that it is the cognitive disorder/dementia and not the Veteran's PTSD which is productive of severe impairment. Again, while the Board has considered the Veteran's assertions, the Board finds the weight of competent and probative evidence to be against his assertion, in effect, that he is rendered incapable of obtaining or sustaining substantially gainful work due to his PTSD, service-connected burn residuals, and hepatitis, either individually or collectively. This is the case even while considering the Veteran's past educational attainment of high school plus two years of college, and his past substantial work experience in construction and as a construction foreman. The Board therefore finds the preponderance of the evidence against the TDIU claim. Accordingly, the benefit of the doubt doctrine does not apply, and the claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for burns of the scalp, neck, back, shoulders, and arms is denied. Entitlement to TDIU is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs