Citation Nr: 1339141 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-25 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial evaluation in excess of 10 percent prior to August 23, 2012, and in excess of 30 percent thereafter, for scars, unstable or painful. ATTORNEY FOR THE BOARD Luke Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 2006 to August 2010. The Veteran had service in Afghanistan from May 2009 to September 2009, for which he received a Combat Action Ribbon and a Purple Heart, among other awards. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, which granted service connection for multiple scars, S/P shrapnel wound injuries from blast wounds to the Veteran's left arm, right leg, and left leg, and assigned an initial disability rating of 10 percent, effective August 8, 2010. An October 2012 rating decision by the New York RO granted an increased rating of 30 percent, effective August 23, 2012. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT For the entire period on appeal, the Veteran's disability has more closely approximated a manifestation of 5 or more scars that were painful or unstable. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, for multiple scars, unstable or painful, have been met or approximated for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.14, 4.118, Diagnostic Codes (DC) 7802-05, 4.124a, DC 8521 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2013). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Here, prior to the initial rating decision in this matter, a letter from VA dated March 2010 notified the Veteran of how to substantiate a service connection claim, informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim, and informed him of how ratings and effective dates are assigned. Therefore, the duty to notify is satisfied. VA's duty to assist under the VCAA includes helping the Veteran obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). Here, the Veteran's service treatment records and VA medical records are in the claims file. He has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2013). With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran VA examinations in May 2010 and August 2012. The examination reports are thorough and supported by the other evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination reports also discussed the impact of the disability on the Veteran's daily living. Based on the examinations, the absence of evidence of worsening symptomatology since the latest examination, and the fact there is no rule as to how current an examination must be, the Board concludes the examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claim. Analysis The issue before the Board is entitlement to an initial evaluation in excess of 10 percent prior to August 23, 2012, and in excess of 30 percent thereafter, for scars, unstable or painful. Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The pertinent criteria for evaluating skin disabilities is found in 38 C.F.R. § 4.118 of the rating schedule. Under DC 7804, scars that are unstable or painful are assigned a 10 percent rating when there are one or two unstable or painful scars present; a 20 percent rating when there are three or four unstable or painful scars present; and a 30 percent rating when there are five or more unstable or painful scars present. Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that 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 present. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804 (2013). DC 7805 provides that for other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, any disabling effects not considered in a rating provided under DCs 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805 (2013). The May 18, 2010 VA examination indicated the Veteran had multiple scars from an August 2009 incident in which he was injured by shrapnel from a roadside improvised explosive device (IED). The Veteran reported intermittent pain in the areas of shrapnel at a usual pain level of one to two out of ten; he reported the pain was present approximately 25 percent of the time. The Veteran added that he had episodes of more severe pain that occurred two to three times a week with a pain level of five out of ten, which normally lasted 15 minutes, and were primarily precipitated by exercise and alleviated by rest. The examiner reported that the Veteran's pain caused a minimal limitation in his abilities to do his work and recreational exercises, but did not affect his normal usual daily activities. The scars were described as follows: right thigh, 5 x 1.5 cm; right calf, 3 x 1 cm; right leg anterior, 3 x 2 cm; left anterior thigh, 16 x 1.5 cm; left leg anterior, 3 x 1.5 cm; posterior left leg - popliteal, 4 x 1.5 cm; left calf, 3 x 1 cm, 2 x 1 cm, 1.5 x 1 cm, 4 x 1 cm, and 3 x 1 cm; left shoulder, 1 x 0.7 cm; left arm, 2 x 1 cm; and left forearm, 2.5 x 0.8 cm. The examiner reported that the scars were non-tender, non-adherent, and of smooth texture without ulceration or breakdown of the skin elevation or depression of the scars. The examiner further observed that there was no evidence of underlying tissue loss, inflammation, edema, keloid formation disfigurement or limitation of function by the scars, which were significantly redder in color than the adjacent skin. He noted that the scar on the posterior left thigh, in the popliteal area, was the one exception, and said it was moderately tender to touch. The examiner rendered diagnoses of (1) multiple shrapnel wounds post four operative procedures, with a mild degree of functional impairment, which he said would cause a mild limitation of the Veteran's ability to perform activities of daily living; and (2) multiple scars, resulting from diagnosis (1) with a mild degree of functional impairment, which he said would cause a mild limitation of the Veteran's ability to perform activities of daily living. In his Notice of Disagreement received January 12, 2011, the Veteran stated that he had four painful or unstable scars, and contended that his disability should be rated at 20 percent. In his VA Form 9 received September 22, 2011, the Veteran contended that three of his scars were unstable or painful. He added that one of those scars was adherent and depressed, and that these features were obvious and visible. The August 23, 2012 VA examination revealed a total of 12 scars, 8 of which were painful. The painful scars were noted as follows: left forearm, 2.5 x 0.5 cm; left thigh, 3 x 1 cm; left leg, 2 x 0.6 cm; left thigh, 5 x 2 cm; left lower thigh, 3 x 1 cm; left leg, 3 x 1 cm; left leg, 2 x 1 cm; and left leg, 3 x 1 cm. The examiner noted that the Veteran's scars resulted in pain and decreased strength in his left leg. Applying the rating criteria to the foregoing evidence, the Board finds that the criteria for an initial 30 percent disability rating, but no higher, are met or closely approximated met for entire period on appeal. See 38 C.F.R. § 4.118, DC 7804 (2013). Over the course of the appeal period, the Veteran has asserted at various times that three, four, or eight of his scars were painful and or unstable. The Veteran is competent to report as to the symptoms he experiences and their history, including pain. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that competent lay testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge). In this case, although some of the Veteran's scars were not painful during the May 2010 VA examination, the Veteran credibly reported pain from the scars in his January 2011 Notice of Disagreement, his September 2011 VA Form 9, and during the August 23, 2012 VA examination. The Board finds that this is evidence of required symptomatology to support an increased initial rating for the multiple scars. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 30 percent rating have been met or approximated for the entire period. 38 U.S.C.A. § 5701(b) (West 2002). At no point during the appeal period have any of the Veteran's scars been both painful and unstable; thus an additional 10 percent for this claim under DC 7804 Note (2) is not warranted. See 38 C.F.R. § 4.118, DC 7804 Note (2) (2013). Consideration has also been given to whether an additional rating may be granted for the Veteran's scars by virtue of DC 7805. The May 2010 VA examination report indicated the Veteran had a mild degree of functional impairment as a result of his scars, although the examiner also noted that he found no limitation of function due to the scars. The Board will resolve this doubt in the Veteran's favor and find the former statement as governing. Moreover, the August 2012 VA examination report indicated that the scars resulted in pain and decreased strength in the Veteran's left leg. Pain is already contemplated in the rating criteria for DC 7804, so additional compensation on this basis is unwarranted. With respect to the loss of strength in the left leg, the Veteran is receiving compensation for common peroneal neuropathy of the left lower extremity under DC 8521. This disability is currently rated at 30 percent, under "incomplete paralysis." According to 38 C.F.R. §38 C.F.R. § 4.124a, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve. Id. As the Veteran already receives compensation for the impaired function of his left leg, granting additional compensation for decreased strength of the left leg would violate the prohibition against pyramiding. 38 C.F.R. § 4.14 (2013). Thus, the grant of additional compensation on this basis is unwarranted. Extraschedular Considerations The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as market interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013); see also, Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected scars is inadequate. A comparison between the level of severity and symptomatology of the Veteran's scars with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran has five or more painful scars. The current 30 percent rating contemplates the presence of five or more painful scars. As noted above, the Board considered granting additional compensation under DC 7805, but determined the Veteran was already compensated for the loss of left leg strength. Thus, the Veteran's current schedular rating under DC 7804 is adequate to fully compensate him for his disability on appeal. Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (the Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his disabilities render him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. ORDER For the entire appeal period, entitlement to a 30 percent disability rating is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs