Citation Nr: 1342287 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-22 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for scars on the back and chest. 2. Entitlement to an initial evaluation in excess of 30 percent for chronic obstructive pulmonary disease (COPD). 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to May 1967, and from July 1968 to August 1970. His claims folder has been rebuilt. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) in Portland, Oregon (RO), which granted service connection for COPD, assigning a 30 percent evaluation, and granted service connection for scars on the back, assigning a 10 percent evaluation; both evaluations effective March 22, 2006. For clarity, the Board has restyled the Veteran's scars claim as "scars on the back and chest," as such is more descriptive of the location of his service-connected scars. In June 2011, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A copy of the hearing transcript is of record. The Board notes that the Veteran has raised the issue of entitlement to TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a total disability rating based on individual unemployability in increased-rating claims when the issue of unemployability is raised by the record. Thus, under Rice, the Board has jurisdiction over the Veteran's TDIU claim. For the purpose of clarity, the Board has separately captioned the issue on the title page of this decision. In August 2011, the Board remanded this appeal for further development. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to an initial evaluation in excess of 30 percent for COPD and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the entire appeal period, the Veteran's two scars on the back and chest are not of such a size so as to warrant a separate compensable rating, and are not shown to affect the head, face, or neck, or result in limitation of function or other disabling effects. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for scars on the back and chest have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2002), (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist The Veteran's claim for an increased initial rating for scars on the back and chest stems from his disagreement with the initial rating assigned following the grant of service connection. Once service connection is granted, the claim is substantiated. Additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA satisfied its duties to notify the Veteran in this case. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records and VA medical records have been obtained. VA provided the Veteran medical examinations in October 2006, and again in March 2012, in light of the Veteran's assertions that his disability had worsened. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected scars as they include interviews with the Veteran, a review of the record, and full physical examinations, addressing the relevant rating criteria. In June 2011, VA provided the Veteran with a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned fully explained the issue involved. See Transcript at p. 2. While the undersigned did not suggest the submission of evidence that may have been overlooked, the Board finds there was no prejudice. Specifically, during the hearing, the undersigned asked the Veteran about the symptoms he experiences from the scars on his body. Following this hearing, the Board remanded the Veteran's claim to provide him with an examination (and obtain VA treatment records) to determine the current severity of his scars. Therefore, to the extent that the Board did not meet all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, there has been no prejudice. In the August 2011 remand, the Board requested that VA obtain any outstanding VA treatment records and schedule the Veteran for a VA examination for his scars. VA obtained the specified VA treatment records and a VA examination was conducted in March 2012, during which the examiner addressed all the necessary clinical findings and conclusions and reviewed the claims file. Thus, the Board finds the AMC substantially complied with the August 2011 remand instructions. The Board concludes that deciding the issue on the merits at this time is appropriate. II. Analysis The Veteran claims that his service-connected scars of the back and chest are more severe than as reflected by the currently assigned 10 percent rating. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran's service-connected scars of the back and chest are currently rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board observes that the schedular criteria for evaluating scars have been revised during the pendency of the Veteran's appeal. Specifically, the amendment, affecting Diagnostic Codes 7800-7805, was revised effective October 23, 2008. See Fed. Reg. 54, 708 (Sept. 23, 2008). Such rating criteria only apply to claims filed on and after October 23, 2008, or in a case where a veteran requests review of his disability under the new rating criteria. In the instant case, the Veteran's claim was filed in March 2006. The December 2006 rating decision on appeal, issued prior to the revised criteria, naturally evaluates the Veteran's scars under the old criteria. The Veteran has not requested his scars be evaluated under the new criteria, however, the October 2010 supplemental statement of the case analyzed the assigned rating under the criteria in effect as of October 23, 2008. As such, in order not to prejudice the Veteran, the Board has evaluated the Veteran's claim under the criteria in effect prior to October 2008 (which was in effect as of August 2002 (2002)), as well as the criteria in effect after the revision in October 2008 (2013). Diagnostic Code 7804 (2002) provides for a maximum 10 percent rating for superficial scars that are painful on examination. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 (2013) provides for a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a maximum 30 percent rating for five or more scars that are unstable or painful. Note (1) states that an unstable scar is 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, one must add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code when applicable. In October 2006, the Veteran underwent a VA examination to assess the nature and severity of his scars. The Veteran reported that the scar on his left mid anterior chest was tender to palpation and itched frequently. The scar on his left posterior chest, he said, was very sensitive with an epicritic-like discomfort if stroked, and was tender at the upper aspect. He stated he cannot wear polyester shirts, because they cling to his skin and irritate the wound. Examination revealed a very small, barely discernible scar, 4 inches by 1/4 inches in size on his left mid back. The scar was normal in color with no sensory changes, but was quite irritable to stroking and there was a moderate tenderness in the upper two inches of the scar. The back scar was not depressed and there was no keloid formation or abnormal attachment to subcutaneous tissues. The scar on the Veteran's chest was 3/4 inches by 3/4 inches and was roughly the formation of a butterfly. The scar was normal in color, slightly dressed, with some lack of subcutaneous tissue. There was no mass and no abnormal attachment to subcutaneous tissues. The scar was tender to deep palpation, particularly at the inferior aspect of the scar. There were no sensory changes. During the June 2011 hearing, the Veteran testified that his scars impacted his ability to work on an assembly line, namely, that the repetitive movements required for such work was painful due to his scars. He further stated that he experiences pain and tightness due to his scars on a daily basis, and that during warm weather, he breaks out in itchy bumps, productive of pus, around his scars, for which he said he had been prescribed ointment. In the Board's August 2011 remand, it was determined that a current VA examination was necessary to assess the Veteran's scars. Accordingly, in March 2012, the Veteran underwent another VA examination for his scars. Examination revealed two painful scars, which were not unstable. The scar on the left upper chest was nontender to palpation, mildly keloidal and is superficial and non-linear in nature, measuring 2 centimeters by 2 centimeters. The scar on the left back was nontender to palpation, non-keloidal, and is linear, measuring 10.5 centimeters. The examiner found that there were no other pertinent physical findings, complications, condition, signs and/or symptoms associated with his scars. The examiner found that the scars do not cause limitation of function, and do not impact his ability to work. Based on the preceding evidence, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his service-connected scars pursuant to Diagnostic Code 7804. In this regard, the Board notes that 10 percent is the maximum rating under Diagnostic Code 7804 (2002). Under the revised criteria, a 20 percent rating under Diagnostic Code 7804 (2013) is available whenever there are three or four scars that are unstable or painful. As the Veteran only has two scars, he is not eligible for a higher rating under these criteria. The Board has also considered whether the Veteran is entitled to a higher or separate rating for his scars under other Diagnostic Codes pertinent to the evaluation of scars. In this regard, Diagnostic Code 7800 (2002), (2013) pertains to scars that result in the disfigurement of the head, face, or neck. However, as the Veteran's scars are on his back/chest, such Diagnostic Code is inapplicable. Likewise, while Diagnostic Code 7801 (2002), (2013) pertains to scars other than on the head, face, or neck, such requires that they be deep or cause limited motion (2002), or are deep and nonlinear (2013). Here, none of the Veteran's scars are deep, and, though he has alleged that they cause limited motion, his scars are not of a size so as to warrant a rating under Diagnostic Code 7801 (2002), (2013) as such criteria requires that the scar cover an area of at least 6 square inches (39 sq. cm). Diagnostic Code 7802 (2002), (2013) is also inapplicable as the evidence fails to show that such is superficial and does not cause limitation of motion (2002), or are superficial and nonlinear (2013), and covers an area of at least 6 square inches (39 sq. cm). Additionally, as the Veteran's scars are not unstable, as previously discussed, he is not entitled to a higher or separate rating under Diagnostic Code 7803 (2002) as such requires that a scar be superficial and unstable. (In the post-October 2008 revisions, Diagnostic Code 7803 was removed). A higher or separate rating pursuant Diagnostic Code 7805 (2002), (2013) is also not warranted for the Veteran's scars. Diagnostic Code 7805 (2002) provides that scars are to be rated on limitation of function of the affected part. Diagnostic Code 7805 (2013) is relevant to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, and provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. Though the Veteran has reported limitation of motion due to his scars, the Board places greater weight on the March 2012 VA examination report, which states that the Veteran does not experience any limitation of function from his scars. Such objective clinical findings were based on an interview with and physical examination of the Veteran, as well as a review of his claims file. Likewise, the VA treatment records fail to demonstrate any limitation of function associated with the Veteran's scars. The Board similarly finds that a separate rating is not warranted on account of the Veteran's complaints of itchiness and bumps related to his scars. In this regard, while VA treatment records document treatment for a bullous-type rash in January 2011, such was on his right arm, head and the back of his neck, and was determined to be a detergent allergy; his scars were not mentioned. Regarding the Veteran's complaints of itchiness, such would not yield a compensable rating under DC 7806, as such requires dermatitis or eczema with at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent of exposed areas affected, or if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks during the last 12-month period. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected scars; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has considered the Veteran's statements that a higher disability rating is warranted for his scars. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 this case, the Veteran is competent to report his scar symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability relating a scar disability to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners who examined him during the current appeal and who have provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the criteria under which his disability is evaluated. Accordingly, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his scars. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected scars with the established criteria found in the rating schedule. The Board notes that all of the Veteran's scar symptomatology was addressed by the applicable rating codes above; therefore, there are no additional symptoms of his scars that are not addressed by the rating schedule. Consequently, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability. Therefore, the rating schedule is adequate to evaluate the Veteran's disability picture. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for his scars on the back and chest. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an initial evaluation in excess of 10 percent for scars on the back and chest is denied. REMAND The record indicates that there are VA treatment records pertaining to the Veteran's COPD which were considered by the RO but are not of record. Specifically, the September 2012 Supplemental Statement of the Case (SSOC) references VA pulmonary function tests (PFTs) performed on July 18, 2012. As these records are necessary to render a decision on the Veteran's COPD claim, such should be obtained on remand and associate with the claims folder. Additionally, as the outcome of the Veteran's claim for a higher initial rating for COPD may impact his TDIU claim, the latter claim is inextricably intertwined with the former claim and adjudication of this downstream issue must be deferred until the agency of original jurisdiction has adjudicated the Veteran's claim for a higher initial rating for COPD. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain and associate with the claims folder all outstanding evidence, to include paper copies of VA treatment records documenting PFTs performed on July 18, 2012, as referenced in the September 2012 SSOC. 2. Thereafter, readjudicate the initial increased rating claims for COPD, as well as the TDIU claim. If any benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. The appellant 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. 2013). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs