Citation Nr: 1340690	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  10-09 601	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable evaluation for scar of the chest, status post surgery.


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from November 1988 to November 2008.

This case came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The record shows that the Veteran requested a hearing before a member of the Board.  VA scheduled him for a hearing to be held in March 2013.  The Veteran failed to present for this hearing without good cause.  Therefore, the Board will proceed as though the hearing request has been withdrawn.  38 C.F.R. § 20.704(d).

In April 2013, the Board remanded the issue of entitlement to an initial compensable evaluation for scar of the chest, status post surgery, for additional development.  The Appeals Management Center (AMC), in Washington, D.C., has completed the requested development, and the case has returned to the Board for adjudication.

Also in April 2013, the Board denied entitlement to an initial compensable evaluation for scar of the left lower extremity, status post surgery.  The record does not reflect that the Veteran filed an appeal of this determination.  Later, in a separate September 2013 decision, an increased rating of 10 percent was granted for scar of the left lower extremity, status post surgery, effective July 29, 2013.  The Veteran has not filed an appeal of that determination.  As such, the issue of entitlement to an increased rating for scar of the left lower extremity, status post surgery, is not in appellate status.  The only issue on appeal before the Board at this time is entitlement to an initial compensable evaluation for scar of the chest, status post surgery.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The documents in the electronic file have been reviewed in connection with the current claim.

The issues of service connection for numbness of the left lower leg (other than scar) and numbness and/or an endocrinologic disorder with lump of the left side of the chest (other than scar) have been raised by the record, but 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.


FINDING OF FACT

Throughout the appeal period, the Veteran's chest scar has measured 23.5 cm by 1.3 cm with no ulceration, adherence, tenderness, instability, tissue loss, or limitation of motion of the chest; deep scarring, underlying soft tissue damage, instability, tenderness, or pain on examination is not shown.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for scar of the chest, status post surgery, are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 7805 (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (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.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" 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 articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The record reflects that VA sent to the Veteran all required notice in a November 2008 letter, prior to the rating decision on appeal.  Here, the Veteran's claim arises from his disagreement with the initial disability rating following the grant of service connection for scar of the chest.  It has been held that once service connection is granted, the claim is substantiated and additional notice is not required.  Thus any defect in the notice provided to the Veteran is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also finds the Veteran has been afforded adequate assistance in regard to the claims on appeal.  VA obtained all relevant medical records identified by the Veteran.  VA further afforded the Veteran an appropriate VA medical examination in July 2013.  The Board finds that the VA examination report described the disabilities in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claims; the Board is also unaware of any such evidence.

Based on the aforementioned July 2013 VA examination report, and requested treatment records, the Board finds that there has been substantial compliance with its prior remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Accordingly, the Board will address the merits of the claim decided herein.

II.  Evaluation of Chest Scar

VA received the Veteran's claim for VA compensation in August 2008.  In a January 2009 rating decision, the RO awarded service connection for scar of the chest, status post surgery, at the noncompensable level under Diagnostic Code 7805 (2007).

During the pendency of this claim, the criteria for evaluating disabilities of the skin under 38 C.F.R. § 4.118 (Schedule of Ratings-Skin) were revised.  The revised criteria are applicable to claims filed on or after October 23, 2008.  They do not apply to the Veteran's claim because it was received in August 2008 prior to effective date of the schedular changes and he has not requested application of the new criteria to his claim.

Law and Regulations

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 (2012); 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.

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.
The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. § 4.1.

Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

Prior to October 23, 2008, the schedular criteria provided as follows:  Scars other than on the face, head or neck were rated under Diagnostic Codes 7801 through 7805, based on size and based on whether such scars were deep versus superficial, stable versus unstable, or painful on examination.  Notes to the Diagnostic Codes state that a "deep" scar is one associated with underlying soft tissue damage; a "superficial" scar is one not associated with underlying soft tissue damage; and an "unstable" scar is one where for any reason there is frequent loss of covering of skin over the scar.

Under Diagnostic Code 7801 (scars other than head, face or neck that are deep or cause limited motion), a 10 percent rating is assigned for scars having an area or areas exceeding 6 square inches (39 sq. cm.); a 20 percent rating is assigned for qualifying scars having an area or areas exceeding 12 square inches (77 sq. cm.); a 30 percent rating is assigned for qualifying scars having an area or areas exceeding 72 square inches (465 sq. cm.); and 40 percent rating is assigned for qualifying scars having an area or areas exceeding 144 square inches (929 sq. cm.).

Under Diagnostic Code 7802 (scars other than on the head, face or neck that are superficial and that do not cause limited motion), a 10 percent rating is assigned for qualifying scar(s) having an area or areas of 144 square inches (929 sq. cm.) or more.  Note (1) to Diagnostic Code 7802 states that qualifying scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.

Under Diagnostic Code 7803 (scars that are superficial but unstable), a 10 percent rating is assigned for qualifying scars.

Under Diagnostic Code 7804 (superficial scars painful on examination), a 10 percent rating is assigned for qualifying scars.  Note (2) to Diagnostic Code 7804 states a 10-percent evaluation is for application for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation.

Under Diagnostic Code 7805 (other scars) provides for rating the scars based on limitation of function of the affected part.

Analysis

Report of VA examination dated in December 2008 reflects clinical findings for scar located on the chest midline, measuring about 24 cm by 1 cm.  There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, inflammation, or edema.

In a statement received in March 2009, the Veteran asserted that when the weather was cold, the bone in his chest hurt badly.  He said that the scar on his chest hurt.

In another statement received in February 2010, the Veteran remarked that his chest scar was painful when the weather was cold.

On VA compensation and pension examination in July 2013, the examiner noted that the Veteran had a midsternal linear operative scar on the anterior trunk that was stable and pain free.  The report reflects that the scar was 23.5 cm by 1.3 cm and linear.  The examiner found the scar to be stable and non-tender but slightly raised above the surface of the surrounding skin by slight keloid formation in its entire length.  The examiner specified that there were no other pertinent physical findings, complications, conditions, signs, or symptoms such as muscle or nerve damage associated with the scar.  The examiner also recorded the Veteran's report of experiencing pain or an ache during cold weather.  A color photograph was included with the examination report.

A compensable evaluation is not warranted under any potentially applicable provision as the evidence of record does not show scars that are deep, cause limitation of motion, are in excess of 39 square centimeters, are associated with underlying soft tissue damage, are unstable, or are painful upon examination.  The Board has considered the Veteran's report of experiencing pain in his chest scar.  However, the diagnostic criteria require pain on examination for an increased rating.  See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008) (emphasis added).  As reviewed above, neither the December 2008 nor the July 2013 VA examiner found the Veteran's chest scar to be painful on examination; indeed, none of the objective evidence of record reflects that the Veteran's chest scar is painful on examination.  Thus, a compensable rating under Diagnostic Codes 7801-7805 for scars must be denied.  38 C.F.R. § 4.118, Diagnostic Code 7801-7805 (2008).  Furthermore, there is no basis for a staged rating.  Neither the lay nor the medical evidence reflects that the disability met the criteria for a compensable rating at any time during the appeal period.  As such, the Board finds that a uniform disability rating is appropriate.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Accordingly, the claim is denied.  As the evidence of record is not roughly in equipoise, there is no doubt to resolve.  See Gilbert, supra.

Extraschedular Consideration

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a).  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.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the record reflects that the manifestations of the Veteran's chest scar are specifically contemplated by the schedular criteria.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).


ORDER

Entitlement to an initial compensable evaluation for scar of the chest, status post surgery, is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs