Citation Nr: 1517026 Decision Date: 04/21/15 Archive Date: 04/24/15 DOCKET NO. 13-03 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable evaluation for scar residual, right upper chest. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1984 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted the Veteran's claim for service connection for a right upper chest scar, and assigned a noncompensable evaluation. The Veteran contests the evaluation assigned. A hearing was held on June 14, 2013, by means of video conferencing equipment with the appellant in Philadelphia, Pennsylvania, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. FINDING OF FACT The Veteran's right upper chest scar measures 1.5 cm x 1 cm, is superficial, and is intermittently painful on exertion. CONCLUSION OF LAW The criteria for a 10 percent evaluation for a painful scar, but no more, is warranted. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159(b), 4.3, 4.7, 4.118, Diagnostic Code 7804 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist In this case, the Veteran is challenging an initial disability rating assigned following a grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). The Board also finds that VA's duty to assist has been satisfied. The Veteran's service treatment records have been associated with the file, and the Veteran has not indicated that he has received treatment for his chest scar. The Veteran was also afforded the opportunity to present testimony at a hearing before the Board. The Veteran has at no time referenced outstanding records which have not already been sought, that he wanted VA to obtain or that he felt were relevant to the claim. The Veteran was provided with VA examination for scars in October 2011 and November 2014. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner personally interviewed and examined the Veteran, and provided the information necessary to evaluate his service-connected upper chest scar under the applicable rating criteria. The examination report further notes the Veteran's subjective reports regarding the disability. The Board therefore finds the VA examination report to be adequate. Additionally, there is no evidence indicating that there has been a material change in the severity of the disability since the Veteran was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). The available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Initial Rating for Upper Right Chest Scar Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2014). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection is most probative of the degree of disability existing at the time that the initial rating was assigned, and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The Veteran's service-connected residual scar, right upper chest is evaluated under 38 C.F.R. § 4.188, Diagnostic Code 7805. The criteria for evaluating scars were amended effective October 23, 2008, and the amendment applies to all applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 -54710 (Sept. 23, 2008); see also 38 C.F.R. § 4.118 (2014). As the Veteran's initial claim for service connection was filed subsequent to this date, only the new criteria are for application. Diagnostic code 7805 states that scars, other (including linear scars) and other effects of scars are to be evaluated under diagnostic codes 7800, 7801, 7802, and 7804. Any disabling effect(s) not considered in a rating provided under these diagnostic codes is to be evaluated under an appropriate diagnostic code. Diagnostic code 7800 is for burn scar(s) of the head, face, or neck. The Veteran's scar is of the right upper chest, and therefore, this DC is inapplicable. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are rated under Diagnostic Code 7801. A 10 percent evaluation is warranted for a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Diagnostic Code 7802, for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial or nonlinear, calls for a 10 percent evaluation if the scar has an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) specifies that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804, for scars that are unstable or painful, calls for a 10 percent evaluation for one or two scars that are unstable or painful. Note (1) specifies that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states 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. Note (3) specifies that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. III. Factual Background The Veteran was provided with a VA examination with regard to his upper right chest scar in October 2011. During the examination, the Veteran reported that he developed the scar on his right upper chest as a result of an in-service wound that had been sutured. He stated that he has intermittent, mild pain on the site of the scar that occurs mostly on heavy exertion. The Veteran denied shortness of breath, bloody sputum, or frequent fever. The Veteran did not require the use of oxygen. The VA examiner noted that there was no pulmonary hypertension, congestive heart failure, respiratory failure, or ankylosing spondylitis. Diagnostic testing showed normal pulmonary function. The lungs were clear, with no wheezes or rales. Examination of the extremities showed full strength of 5/5. Examination of the right upper chest revealed a 1.5 cm x 1 cm scar on the anterior aspect of the right upper chest. The scar was well healed and superficial with no underlying tissue damage or skin breakdown. There was no keloid inflammation or edema of the scar. There was also no pain or tenderness on palpation of the scar. The examiner noted that there was no limitation of motion or function due to the scar. He also documented that the Veteran was not wearing oxygen, there was no chest abnormality noted, and the Veteran walked to the clinic without respiratory distress. The examiner diagnosed residuals of scar and mild intermittent pain on the right upper chest on heavy exertion. At the June 2013 Board hearing, the Veteran testified that when his breathing increases, such as while working or shoveling snow, the feels the scar tissue ache and he must stop and rub it. He noted that he works as a mail processor, and that while working, he has to take a few breaks due to pain in his chest. The pain lasts for a few minutes and he must stop to control his breathing, sit down, and rub the scar. He testified that this happens every day and it impacts his ability to work. The Veteran subsequently filed a claim for service connection for posttraumatic stress disorder. During his November 2014 VA examination for this disability, the Veteran reported intermittent pain from his stab wound. He stated that he previously worked as a mail handler, but that his role at work was changed, to mail processing, related to efforts to address chronic pain associated with residuals of his injury. The Veteran reported physical limitations in lifting and upper body movement. In connection with a separate claim for service connection for an additional scar related to his in-service treatment for the stab wound, the Veteran was provided with an additional VA examination for scars, in November 2014. The examiner noted that the chest wound healed without residuals, and that the scars of the trunk are not painful or unstable. The examiner also stated that there was no limitation of function. IV. Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran's service-connected right upper chest scar warrants an initial evaluation of 10 percent, but no more, under Diagnostic Code 7804. The Veteran is competent to report on his subjectively-experienced symptoms of pain to the area of the scar on exertion, because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board also finds no reason to question the credibility of his consistent assertions as to pain. In a December 2014 rating decision, the RO granted service connection for a second scar: a surgical scar right chest, status post tube insertion. The Board notes that the number of scars which are painful dictates the rating assigned under Diagnostic Code 7804, but that even were the evidence to show that both the right upper chest scar and the surgical scar on the right chest, status post tube insertion were painful, DC 7804 specifies that a 10 percent evaluation is warranted for one or two scars which are unstable or painful, and a 20 percent evaluation is only available under that diagnostic code for three or four scars that are unstable or painful. An initial evaluation in excess of 10 percent is not warranted, however, because the scar is not deep or nonlinear and does not cover an area of 144 square inches or greater. See 38 C.F.R. § 4.188, Diagnostic Codes 7801 & 7802. The October 2011 VA examiner measured the right upper chest scar at 1.5 cm x 1 cm and stated that the scar was well healed and superficial with no underlying tissue damage or skin breakdown. Additionally, although the Veteran reported to the November 2014 VA mental health examiner that he was limited in lifting and upper body movements, both VA examinations for scars, which specifically considered the question of additional functional impairment, found that there was no limitation of motion or function due to the scar. The Board has considered the Veteran's statement, but finds more probative the conclusion of the October 2011 VA examiner, as it was based on examination of the Veteran and consideration of his lay statements regarding pain on exertion. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)) and Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (holding that the credibility and weight to be attached to medical opinions are within the province of the Board). Additionally, the objective medical evidence from the October 2011 VA examination demonstrated full strength of the extremities, which weighs against the Veteran's assertions of lifting limitations. Therefore, a preponderance of the evidence is against a finding that separate evaluations are warranted under DC 7805 for disabling effects not considered in a rating provided under the diagnostic codes for scars. Finally, the Board is cognizant of the ruling of 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, 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 argued, and the record does not otherwise reflect, that his service-connected right upper chest scar renders him totally unemployable. Although the Veteran testified at the Board hearing that his disability impacts his ability to work, he also stated that he was currently employed, and gave no indication that his current employment situation was either marginal or in a sheltered or protected environment. Accordingly, the Board concludes that a claim for TDIU has not been raised in connection with his claim for entitlement to an initial compensable evaluation for a right upper chest scar. V. Extraschedular Considerations In reaching the above conclusion, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the right upper chest scar is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2014). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the left knee are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The evidence demonstrates that the Veteran has a relatively small and superficial upper chest scar, which results in discomfort and pain upon exertion. The Veteran has also reported that when he gets such pain, he must stop what he is doing and rest. The Board finds that these symptoms and outcomes are neither exceptional nor unusual for a painful scar and finds that the Veteran's impairment is sufficiently contemplated by the rating criteria applicable for scars. As discussed above, there are higher ratings available under the applicable diagnostic codes, but the disabilities are not productive of such manifestations. As such, it cannot be said that the available schedular evaluations for the Veteran's left knee disability are inadequate. Nevertheless, even were the Board to find that the Veteran's disability picture was exceptional such that the available schedular evaluations were inadequate, the disability does not exhibit other related factors to allow for extraschedular referral. Although the Veteran has stated that he has been assigned different job duties, transitioning from mail handling to mail processing, which do not require the same degree physical exertion in order to deal with his symptoms, the Board does not find that this rises to a level of "marked" interference with employment, such as that contemplated for extensive or frequent absences from work or an essential inability to perform one's duties. The Veteran's scar has also not resulted in frequent periods of hospitalization. The Board further notes that the Veteran has been granted service connection for PTSD and an additional surgical scar of the right chest, status post tube insertion. Under Johnson v. McDonald, 2013-7104, 2014 WL 3844196 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, the evidence does not demonstrate, and the Veteran has not asserted, that there are additional symptoms or disability associated with his service-connected conditions that have not been adequately covered by the rating criteria for each individual condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Based on the foregoing, the Board finds that the requirements for extraschedular evaluation for the Veteran's service-connected scar residual, right upper chest, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An evaluation of 10 percent for scar residual, right upper chest, is granted from May 10, 2011. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs