Citation Nr: 1616831 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 09-30 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating for status post cervical spine C6-7 fusion scarring (post-operative cervical spine scar). REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from January 1981 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Winston-Salem, North Carolina. In June 2011, the Veteran testified at a videoconference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. In March 2014 and October 2015, the Board remanded the above claim for additional development. FINDING OF FACT The Veteran's post-operative cervical spine scar is not disfiguring; is not superficial or unstable; is not superficial and painful; and causes no loss of function. CONCLUSION OF LAW The criteria for a compensable rating for a post-operative cervical spine scar are not met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804, 7805 (2007); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7. 4.31 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Under this law, VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. Initially, the Board finds the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id, at 490-91; Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the Board finds that VA's duty to notify in this case has been satisfied. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans' Law Judge (VLJ) 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 June 2011 Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim for a compensable rating. The Veteran was assisted at the hearing by his accredited representative, and his representative and the VLJ asked questions to draw out the current severity of the appellant's post-operative scar. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent evidence, including the Veteran's service treatment records and his post-service records from the Durham and Fayetteville VA Medical Centers. The Veteran was provided with VA examinations in December 2007, May 2009, November 2015, and January 2016. The Board finds the VA examinations are adequate for rating purposes, because they include a detailed medical history and findings responsive to the applicable rating criteria. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, as updated VA treatment records and VA examinations were obtained in 2015 and 2016, the Board finds that there has been substantial compliance with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's post-operative cervical spine scar is rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7805. Initially, the Board notes that during the pendency of the appeal, the criteria for evaluating skin conditions under 38 C.F.R. § 4.118 were revised, effective October 23, 2008. These revisions are applicable only to claims filed on or after that date or where the Veteran expressly requests review under such criteria. 73 Fed. Reg. 54708 (Sep. 23, 2008); see also 77 Fed. Reg. 2909-10 (Jan. 20, 2012) (correcting the applicability-date language for the revised rating criteria for scars). The Veteran's claim was filed before the change, in December 2007, and no request for review under the revised criteria was made. Accordingly, the revised schedular rating criteria are not applicable in this case and those in effect prior to October 23, 2008 must be applied. Under 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007) scars are to be rated on the limitation of the affected part. Diagnostic Code 7800 (2007) rates disfigurement of the head, face, or neck. A 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is provided for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. Higher ratings are available for more characteristics of disfigurement and additional distortion or asymmetry of paired sets of features. Under note (1), the 8 characteristics of disfigurement for purposes of evaluation under § 4.118 are as follows: a scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Codes 7801 and 7802 (2007) concern scars in areas other than the head, face or neck and are inapplicable to the instant case. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2007) provides that superficial, unstable scars warrant a 10 percent evaluation. Id. An unstable scar is defined as one where, for any reason, there is frequent loss of skin over the scar. Id. A superficial scar is not one associated with underlying soft tissue damage. Id. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007) provides that superficial scars, painful on examination, warrant a 10 percent disability rating. Id. With the above criteria in mind, at the December 2007 VA examination, the Veteran had a well-healed surgical scar at the lower left side of his neck anteriorly which was 7.5 cm in length with an average width of less than 0.1 cm. The examiner indicated that the scar was well healed and without complications. The surface of the scar was flush with the surrounding skin and it was "barely perceptible." There was no detectable alteration in sensory perception or vascular supply, no significant change in pigmentation or texture, no sign of keloid formation, no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, or edema. At the May 2009 VA examination, the Veteran evidenced a 2.5 inch superficial scar on the anterior neck. It was not painful, adherent to underlying tissue, unstable, elevated, depressed, deep, or inflamed. The scar's texture and color were the same as the surrounding skin. There was no keloid formation, edema, induration, inflexibility, limitation of motion, or disfigurement. At the November 2015 VA examination, the Veteran had a 7.0 cm by 0.1 cm scar on the anterior neck. It was well healed with no redness, swelling, irritation, or hypertrophy. The scar was not painful or unstable. The scar's body surface area (BSA) was 0.7 cm2, and therefore did not have a total area equal to or greater than 39 square cm (6 square inches). At the January 2016 VA examination, the Veteran complained that the scar itches a little in the summer when he sweats a lot and it becomes red when he attempts to keep it dry. The Veteran also reported that the scar was not painful and/or unstable. On examination, the Veteran had a 7.0 cm by 0.1 cm scar on the anterior neck. It was well healed with no redness, swelling, irritation, hypertrophy, elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The scar's BSA was 0.7 cm2. The examiner thereafter opined that the scar did not cause or involve a gross distortion or asymmetry of facial features, visible or palpable tissue loss, limitation of function, or impact his ability to work. Color photographs of the scar were provided by the January 2016 VA examiner, which show a barely discernable scar on the anterior neck. The examiner noted that the pictures she took show the scar to be worse than it is in person. The Veteran's treatment records periodically note the presence of the post-operative cervical spine scar, but contain no significant findings. As to a compensable rating under Diagnostic Code 7800, the Board notes that the above VA examinations are uniform in showing that the scar is 7.5 cm long and 0.1 cm wide. Likewise, the VA examinations are uniform in reporting that the scar is not elevated or depressed on palpation, adherent to underlying tissue, hypo-or hyper-pigmented, manifested by abnormal skin texture, manifested by missing underlying soft tissue, and/or indurated and inflexible. Additionally, there is no evidence of visible or palpable tissue loss and either gross distortion or asymmetry of any features. Therefore, the Board finds that the criteria for a compensable rating for the Veteran's post-operative cervical spine scar under Diagnostic Code 7800 have not been met. 38 C.F.R. § 4.118 (2007). As to a compensable rating under Diagnostic Code 7803 or Diagnostic Code 7804, the evidence reflects that the scar is superficial and not unstable or painful on examination. In this regard, the Board has also not overlooked the Veteran's statements that his scar is painful. However, the Board emphasizes that Diagnostic Code 7804 (2007) requires scars to be painful on examination to warrant a compensable rating, and this finding was not made at any of the four VA examinations. Therefore, the Board finds that the criteria for a compensable rating for the Veteran's post-operative cervical spine scar have not been met under Diagnostic Code 7803 or Diagnostic Code 7804. 38 C.F.R. § 4.118 (2007). As to Diagnostic Code 7805, there is no indication of any loss of neck function due to the scar. In this regard, the Board emphasizes that the RO has already granted the Veteran service connection for a separate disability which is the cause of his cervical spine limitations (i.e., status post cervical spine fusion), assigning him a separate compensable rating for these limitations under 38 C.F.R. § 4.71a, Diagnostic Code 5241 (2015). Thus, a compensable rating is not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Veteran has described pain and itching in the scar area. Pain is specifically contemplated in Diagnostic Code 7804. While itching is not specifically listed in the rating criteria, marked interference with employment or frequent periods of hospitalization due to the scar has not been demonstrated, and there is no other indication of an exceptional or unusual disability picture in relation to the Veteran's scar. The Board, therefore, has determined that referral of these issues for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Additionally, neither the Veteran nor the record raise the possibility of an extraschedular rating based on collective impact of multiple disabilities. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In adjudicating the current appeal for a compensable evaluation, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the January 2016 VA examiner specifically opined that his post-operative scar has no impact on his ability to work and the Veteran has never claimed otherwise. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. ORDER An initial compensable rating for status post cervical spine C6-7 fusion scarring is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs