Citation Nr: 1617664	
Decision Date: 05/03/16    Archive Date: 05/13/16

DOCKET NO.  13-22 915	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been presented to reopen the previously denied claim for entitlement to service connection for kidney failure.

2.  Entitlement to service connection for coronary artery disease status-post myocardial infarction.

3.  Entitlement to service connection for a psychiatric disorder, to include depression, and to include as secondary to service-connected duodenal ulcer.

4.  Entitlement to service connection for an esophageal condition.

5.  Entitlement to service connection for tinnitus.

6.  Entitlement to service connection for a sleep condition.

7.  Entitlement to service connection for high blood pressure.

8.  Entitlement to service connection for headaches.

9.  Entitlement to a disability rating in excess of 20 percent for service-connected duodenal ulcers.

10.  Entitlement to an initial compensable rating for service-connected scar, status-post surgery perforated duodenal ulcer.


REPRESENTATION

Veteran represented by:	J. Michael Woods, Attorney-at-Law


ATTORNEY FOR THE BOARD

Mike A. Sobiecki, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to August 1972.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2010, August 2012, and April 2015 rating decisions of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA).

In his July 2013 substantive appeal, the Veteran requested a hearing before a member of the Board.  In an April 2015 statement, he withdrew his hearing request.

The issue of entitlement to service connection for depression has been recharacterized as entitlement to service connection for a psychiatric disorder, to include depression, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In December 2015 and February 2016, the Veteran's representative requested 90 day extensions for the submission of additional evidence and argument.  In March 2016, the Veteran's representative submitted new evidence, waived any remaining time for the extension, and requested that the Board proceed with adjudicating the claims on appeal.  Waiver of RO consideration of the new evidence is presumed given the date of the Veteran's substantive appeal (July 2013 via VA Form 9).  See 38 U.S.C.A. § 7105(e) (West 2014).

The issue of entitlement to an initial compensable rating for service-connected scar will be decided in the decision below.  The remaining issues on appeal are addressed in the REMAND portion of the decision below and are remanded to the agency of original jurisdiction (AOJ).


FINDING OF FACT

The Veteran's surgical scar is located on his abdomen, is four and a half inches in length, and manifests in slightly hyperpigmented skin and minor itching.


CONCLUSION OF LAW

The criteria for a compensable rating for scar, status-post surgery perforated duodenal ulcer, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.31, 4.118, Diagnostic Code 7804 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).

The appeal arises from a disagreement with the initially assigned disability rating after service connection was granted.  Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The Veteran's service treatment and personnel records have been obtained.  Post-service VA and private treatment records have also been obtained.  The Board notes that it is requesting that efforts be made to obtain private treatment records on remand of the other issues on appeal; however, there is no indication that these records would impact the evaluation of the Veteran's scar disability.

The Veteran was provided a VA medical examination in July 2010.  The examination, along with the expert medical opinion, is sufficient evidence for deciding the claim.  The report is adequate as it is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation.  Thus, VA's duty to assist has been met.

II.  Increased Rating

A.  Disability Ratings, in General

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life.  Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

When all the evidence is assembled, a determination will be made on the claim.  Reasonable doubt will be resolved in favor of the Veteran.  If there is a preponderance of the evidence against the claim, the claim will be denied.  If the evidence supports the claim or is in relative equipoise, the Veteran will prevail.  38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

B.  Rating Schedule for Scars

Scars are evaluated pursuant to Diagnostic Codes (DCs) 7800, 7801, 7802, 7804, and 7805.  38 C.F.R. § 4.118.

Scars or disfigurement of the head, face, or neck are rated pursuant to DC 7800.  

Scars, not of the head, face, or neck that are deep and nonlinear are rated pursuant to DC 7801.  Under DC 7801, a 10 percent rating is warranted for area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  Higher ratings are available for greater levels of severity.  

DC 7802 provides a 10 percent rating for scars that are nonlinear, superficial, and not located on the head, face, or neck, that are of an area or areas of 144 square inches or greater.  Note (1) to DC 7802 defines a superficial scar as one not associated with underlying soft tissue damage.  

Scars that are unstable or painful are rated pursuant to DC 7804.  A 10 percent rating is warranted for one or two scars that are unstable or painful.  Note (1) defines an unstable scar as one where 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) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable.

DC 7805 provides that scars should be evaluated pursuant to DCs 7800 through 7804 and adds that any disabling effect(s) not considered in those rating criteria should be evaluated under an appropriate DC.

C.  Analysis

The Veteran's service-connected scar, status-post surgery perforated duodenal ulcer, is rated as noncompensable pursuant to 38 C.F.R. § 4.118, DC 7804.  He alleges that this disability warrants a higher, compensable evaluation.  For the reasons that follow, the Board finds that a compensable evaluation is not warranted.

This scar was evaluated in a July 2010 VA examination.  The Veteran reported that the scar causes minor itching.  The examiner found that the scar is four and a half inches in length and located on the upper abdomen and extends down from the xiphisternum.  The scar is well healed.  It is slightly hyperpigmented compared to the rest of the skin.  There is no elevation or depression of the scar noted.  There is no cicatrization, inflammation or edema, or any keloid formation.  The scar is not painful or tender.  There is also no skin breakdown.

As the evidence does not show, and the Veteran has not alleged, that the scar is painful or unstable, the Board finds that the disability does not approximate the criteria corresponding to a compensable rating pursuant to DC 7804.  38 C.F.R. §4.118.  Where such requirements have not been met, a zero percent evaluation shall be assigned.  38 C.F.R. § 4.31.

The Board also finds that the Veteran's scar manifestations do not approximate the criteria for a compensable rating pursuant to the other DCs for rating scars.  DC 7800 is not for application because the scar is not located on the Veteran's head, face, or neck.  Similarly, DCs 7801 and 7802 are not for application because the evidence does not show that scar to be nonlinear.  

The Board has also considered whether referral for an extraschedular rating is warranted.  38 C.F.R. § 3.321(b).  In this case, the Veteran presents a surgical, abdominal scar that is four and a half inches in length.  It is well healed but slightly hyperpigmented and results in minor itching.  The rating criteria reasonably describe the Veteran's disability level, and the Board notes that the symptom of minor itching, while not explicitly listed in the schedular criteria, has not resulted in interference with employment, hospitalization, and the Veteran has also not alleged that it interferes with his daily functioning; accordingly, it does not rise to the level of creating an exceptional or unusual disability picture.  There is also no indication of symptoms resulting from the combined effects of the Veteran's service-connected disabilities.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  Thus, the Board finds that the assigned schedular evaluation of the Veteran's scar, status-post surgery perforated duodenal ulcer, is adequate.  Referral is not required.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

The Board further notes that the evidence does not suggest, nor does the Veteran assert, that this disability has precluded him from employment.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

In summary, the preponderance of the evidence is against the claim.  There is no doubt to be resolved; the Veteran's scar, status-post surgery perforated duodenal ulcer does not approximate the criteria for a compensable rating.  38 U.S.C.A. §5107(b); 38 C.F.R. §§ 3.102, 4.3.  A higher, compensable rating is not warranted.


ORDER

A compensable rating for service-connected scar, status-post surgery perforated duodenal ulcer, is denied.

REMAND

The Board finds that further development of the remaining issues on appeal is needed.  Additionally, on remand, any outstanding VA treatment records should be obtained and associated with the claims file.  38 U.S.C.A. § 5103A(c).

Private Treatment Records

In July 2014, the Veteran provided authorization for VA to obtain private treatment records from Drs. B.S. and L.D.  He indicated that these records relate to treatment for his liver, colon, and heart, and therefore the Board finds that they are relevant to the claims on appeal.  The record does not show that VA has made efforts to obtain these records.  Accordingly, remand is required so that they may be obtained.  38 U.S.C.A. § 5103A(b)

Psychiatric Disorder

The Veteran seeks service connection for a psychiatric disorder, to include depression.  His VA treatment records show that he has been diagnosed with depressive disorder and mood disorder.  See, e.g., April 2012 Psychiatrist Outpatient Note.  Additionally, a February 2016 private medical opinion by Dr. H.-G. states that the Veteran's depression may be related to service and also be aggravated by service-connected duodenal ulcer.  The low threshold of McLendon has been met; VA has a duty to assist this Veteran in substantiating his claim by providing an examination. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As the Veteran has not yet undergone a psychiatric examination, one should be scheduled on remand.

Manlincon

The Veteran additionally seeks service connection for an esophageal condition, tinnitus, a sleep condition, high blood pressure, headaches, and kidney failure.  These claims were denied in rating decisions of September 2014 and April 2015.  The Veteran filed a timely notice of disagreement with their denials in April 2015; therefore, they are in appellate status.  A statement of the case (SOC) has not yet been issued by the AOJ.  Remand is required for the issuance of a SOC.  38 C.F.R. §§ 20.201, 20.300; Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, these issues are REMANDED for the following actions:

1.  Obtain and associate with the claims file any outstanding VA treatment records.

2.  Contact the Veteran and request new authorization and consent to release information to VA from Drs. S.B. and L.D.  All efforts to obtain records from these private physicians must be clearly documented in accordance with 38 C.F.R. § 3.159(e).

3.  Issue a statement of the case for the following issues:

a.  Entitlement to service connection for an esophageal condition.

b.  Entitlement to service connection for tinnitus.

c.  Entitlement to service connection for a sleep condition.

d.  Entitlement to service connection for high blood pressure.

e.  Entitlement to service connection for headaches.

f.  Whether new and material evidence has been presented to reopen the previously denied claim for entitlement to service connection for kidney failure.

The Veteran must also be notified that in order to perfect the appeal of these issues to the Board a substantive appeal must be filed.  These matters should only be returned to the Board if the Veteran timely perfects an appeal.

4.  Schedule the Veteran for a VA psychiatric examination by an appropriate mental health professional.  The entire claims file must be reviewed in conjunction with the examination.

The Veteran has been diagnosed with major depressive disorder and mood disorder.  The examiner is asked to confirm these diagnoses, and identify any additional mental health disorders, if present.  If posttraumatic stress disorder is diagnosed, the stressor(s) upon which it is based must be clearly identified.

For each diagnosed psychiatric disorder, the examiner is to answer: 

A)  Is it at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in or is otherwise related to the Veteran's active military service?

B)  Is it at least as likely as not that the disorder is proximately caused or aggravated by the Veteran's duodenal ulcer?  If the examiner finds that the Veteran's duodenal ulcer aggravated any psychiatric disorder diagnosed, the examiner must attempt to establish a baseline level of severity of the psychiatric disability prior to aggravation by the duodenal ulcer.

A complete rationale must be provided.  All pertinent evidence must be discussed in the rationale, including the lay statements of record and the February 2016 private psychiatric evaluation completed by Dr. H.-G.

5.  Finally, readjudicate the appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.




______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs