Citation Nr: 1419164 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 08-14 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 10 percent for recurrent lipomas with resulting scars. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied a rating in excess of 10 percent for recurrent lipomas with resulting scars. In February 2010, the Veteran testified before the undersigned at a videoconference hearing at the Hartford RO; a copy of the transcript is of record. FINDINGS OF FACT 1. Prior to October 23, 2008, the Veteran's disability picture consisted of recurrent painful lipomas that resulted in painful scars that were not deep, encompassed an area smaller than 144 square inches (929 centimeters), and caused no limitation of function. 2. From October 23, 2008, the Veteran's disability picture consists of recurrent painful lipomas with more than five resultant scars that are superficial, encompass an area smaller than 144 square inches (929 centimeters), and cause no limitation of function. CONCLUSIONS OF LAW 1. Prior to October 23, 2008, the criteria for a rating in excess of 10 percent for recurrent lipomas with resulting scars are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7819-7804 (2008). 2. From October 23, 2008, the criteria for a 30 percent rating, but no higher, for recurrent lipomas with resulting scars are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Code 7819-7804 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2013). The VCAA notice requirements apply to all five elements of a claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the Agency of Original Jurisdiction (AOJ). Id.; Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In an August 2006 letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by him, and what information and evidence would be obtained by VA. This letter also contained information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess. The rating decision, issued in August 2007, represents the initial adjudication following issuance of this notice. As such, the July 2006 letter meets both the content of notice requirement and the VCAA's timing of notice requirement. All relevant evidence necessary for an equitable resolution of the Veteran's claim have also been identified and obtained. The evidence of record includes VA and private outpatient treatment records, reports of multiple VA examinations, statements from the Veteran, and the transcript of a February 2010 hearing before the undersigned. The Veteran and his representative have not identified any other outstanding relevant evidence. The Veteran was afforded VA examinations to assess the severity of his lipomas and/or scars in June 2007, August 2008, and September 2012. The reports of these examinations are adequate for rating purposes as they reflect the examiners interviewed and examined the Veteran, reviewed the claims file, and reported the clinical findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran was provided an opportunity to set forth his contentions on the issues on appeal during the February 2010 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the February 2010 hearing the undersigned explained the issues, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board also notes that the case was remanded in May 2011 to provide the Veteran with an examination. On remand, as noted above, the Veteran was afforded a VA examination in September 2012. The AOJ was also instructed to obtain private treatment records relating to the Veteran. In correspondence dated in May 2011, the AOJ requested that the Veteran provide a completed VA Form 21-4142 to identify outstanding private treatment records (especially from "Dr. A") and to authorize VA to obtain these records on his behalf. The Veteran did not respond to this request. In order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). As the Veteran failed to respond to the AOJ's request for information regarding the records from Dr. A, the Board finds that VA has no further duty to assist in this regard. The Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Rating for Recurrent Lipomas with Resulting Scars Disability evaluations are determined by the application of the 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 military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). For the rating period on appeal, the Veteran's recurrent lipomas with resulting scars disability has been evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7819-7804. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran's benign skin neoplasms (Diagnostic Code 7819) are rated under the criteria for unstable or painful scars (Diagnostic Code 7804). See 38 C.F.R. § 4.20. The Board notes that during the pendency of the appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 2008. These revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008, unless the Veteran requests that the RO review the claim under the revised criteria. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). Although the Veteran did not request such a review, the RO evaluated the Veteran's claim under the revised rating criteria in the March 2008 Statement of the Case and the April 2009 Supplemental Statement of the Case. Therefore, to ensure there is no prejudice to the Veteran, the Board will also consider the revised criteria. The effective date of any increase based on the new rating criteria will not be earlier than the effective date of the final rulemaking. 73 Fed. Reg. at 54,693. Therefore, from the effective date of this revision, the Veteran is entitled to evaluation under the revised criteria. VAOPGCPREC 3-2000 (Apr. 10, 2000). The pertinent rating criteria effective prior to and from October 23, 2008 are similar. Under the criteria effective prior to October 23, 2008, a maximum 10 percent rating was warranted for a superficial scar that was painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective prior to October 23, 2008). Under the criteria effective from October 23, 2008, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective October 23, 2008). On VA examination in June 2007, the Veteran reported a history of multiple lipomas. He reported a current mass behind his right knee and a similar mass on the lateral aspect of his left knee, both of which caused mild discomfort intermittently. The examiner noted a 1.5 centimeter mobile nontender, subcutaneous mass on the right popliteal fossa, but did not find a lipoma on the left knee. Examination revealed a pea-sized mobile subcutaneous nodule flat on the anterior sternum, right upper quadrant rib area, right lateral thigh, and behind his left ear. Lipomas were persistent with enlargement and discomfort due to pressure. The Veteran was status-post excision multiple excisions with multiple stable, asymptomatic scars. The examiner noted that the Veteran would need further excisions in the future. Scars were noted on the right lower back (1.5 centimeters, flat, linear), left lower back (4 centimeters flat, linear and another 2 centimeters flat, linear), abdomen (1 centimeter flat, linear and another 2 centimeter linear both with dimpling of the skin), right upper quadrant (2.5 centimeter flat, linear), right anterior thigh (1.5 centimeter flat, linear), right popliteal fossa (1.5 centimeter flat, linear), left thigh (4 centimeter flat, linear), and right lateral thigh (1 centimeter flat, linear). For all scars there was no pain, no adherence to underlying tissue, normal texture of skin, no instability, and the scars were not deep. All scars were superficial. There was also no inflammation, edema, or keloid formation. The scars were all normal colors compared to normal areas of the skin. There was no area of induration and inflexibility of the skin in the area of any scar, and no limitation of motion or limitation of function caused by any scar. On VA examination in August 2008, the Veteran had two palpable small lipomas, one on the right lower abdomen, and one on the right lateral rib cage, both measuring 0.3 centimeters, with no erythema or tenderness, and freely moveable. The Veteran was diagnosed with recurrent lipomas, with two new small lipomas that did not require intervention at the time. The Veteran had no functional impairment and worked full time. A scar examination revealed the following scars: two on the mid-chest (1.5 centimeters by 0.1 centimeters hypopigmented, 1 centimeter by 0.1 centimeter), four on the right lateral chest (2 centimeters by 0.2 centimeters slightly depressed hypopigmented, 2 centimeters by 0.1 centimeters hypopigmented, 4 centimeters by 0.2 centimeters hypopigmented, 2 centimeters by 0.2 centimeters hypopigmented), two on the left lower quadrant (1 centimeter by 0.3 centimeters hypopigmented, slightly depressed, 3 centimeters by 0.3 centimeters, hypopigmented), four on the right thigh (2 centimeters by 0.2 centimeters hyperpigmented, 1 centimeter by 0.2 centimeters scabbed, 2 centimeters by 0.2 centimeters, 1.5 centimeters by 0.5 centimeters hyperpigmented), one on the left thigh (2 centimeters by 0.1 centimeters scabbed), one on the posterior of the left knee (1 centimeter by 0.1 centimeters hyperpigmented), one on the right lumbar area (1 centimeter by 0.2 centimeters hyperpigmented), and two on the left upper back (3.5 centimeters by 0.3 centimeters hypopigmented, 2 centimeters by 0.2 centimeters hypopigmented). There was no pain due to any scar on examination and no adherence to underlying tissue. Texture of the skin was normal, other than a few scabbed scars. The scars were superficial, and not unstable or deep, and there was no elevation of the surface contour on palpation. There was no inflammation, edema, or keloid formation. There was no area of induration and inflexibility of the skin in the area of the scar or any limitation of motion or other limitation of function caused by a scar. On VA examination in September 2012, the examiner noted that the Veteran had multiple scars from his lipoma removals. The scars were not painful or unstable. The Veteran had a linear scar on the left forearm, measuring 3.5 centimeters; linear scar on the right lower extremity (thigh and lower leg) measuring 2 centimeters; three superficial non-linear scars on the right lower extremity (thigh and leg) measuring 3 centimeters by 1.5 centimeters, 3 centimeters by 1 centimeter, and 2 centimeters by 1 centimeter; three superficial non-linear scars on the left lower extremity (thigh and lower leg) measuring 4 centimeters by 1 centimeter, 3 centimeters by 1 centimeter, and 3 centimeters by 1 centimeter; eight linear scars on the anterior trunk (chest) measuring 3 centimeters (5 scars), 4 centimeters (2 scars), and 2 centimeter (1 scar); one superficial non-linear scar on the right chest measuring 4 centimeters by 1 centimeter; and two linear scars on the left back measuring 6 centimeters and 3 centimeters. The combined total area in square centimeters for superficial non-linear scars was 9.5 centimeters squared in the right lower extremity, 10 centimeters squared in the left lower extremity, and 4 centimeters squared in the anterior trunk. No deep non-linear scars were found. No scars resulted in limitation of function, and there were no pertinent physical findings, complications, conditions, signs, or symptoms associated with any scar. The examiner noted that the Veteran's scars did not affect his ability to work. He also noted that more lipomas occur as time passes, and the Veteran was scheduled for removal of three or four more lipomas. At his hearing, the Veteran testified that his lipoma caused a pinching pain on the back of his leg during exercise. Board Hearing Tr. at 5. He also reported some soreness due to his lipoma on his chest. Id. at 6, 10. Additionally, throughout the record, the Veteran has complained of occasional tenderness regarding recurring lipomas in different locations on his body. See, e.g., February 2007 VA outpatient record (noting mild, intermittent discomfort regarding two lipomas). Considering the above-cited evidence, a rating in excess of 10 percent is not warranted under the former criteria, as it is the maximum rating available under the prior version of Diagnostic Code 7804. In this regard, the Board has considered the application of other Diagnostic Codes referable to scars. None are applicable in this case. The scars are not located on the Veteran's head, face, or neck, are not deep or unstable, and although superficial, do not cover an extensive area (929 square centimeters or more). Furthermore, at no time during this appeal have the Veteran's lipomas nor his scars limited any function in the affected area. Under the current criteria, however, a 30 percent rating is warranted under Diagnostic Code 7804 for five or more scars that are painful. The Veteran has more than five scars, and although the above-cited examination reports indicate they are not painful on examination, the Veteran has competently and credibly testified as to discomfort from his recurrent lipomas that ultimately result in said scars, which has been confirmed by the 2007 VA examiner and in the VA outpatient records. Rating the lipomas by analogy under the revised Diagnostic Code 7804 allows for the maximum 30 percent rating as of October 23, 2008. VAOPGCPREC 3-2000 (Apr. 10, 2000). The Board has considered whether referral for an extraschedular rating is appropriate in this case. 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. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating 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. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (2013). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's recurrent lipoma symptoms primarily involve pain and resulting scars. Such impairment is specifically contemplated by the rating criteria and the Veteran has been evaluated on that basis. Hence, the rating criteria reasonably describe the Veteran's disability. In short, there is no indication in the record that the average industrial impairment from the Veteran's recurrent lipomas with resulting scars would be in excess of that contemplated by the ratings assigned above; the Veteran's disability picture is not shown to be exceptional or unusual. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Prior to October 23, 2008, entitlement to a rating in excess of 10 percent for recurrent lipomas with resulting scars is denied. From October 23, 2008, a 30 percent rating for recurrent lipomas with resulting scars is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Sonnet Gorham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs