Citation Nr: 1622894 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 11-05 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating and a rating in excess of 10 percent from January 12, 2012, for postoperative lipoma with residual scar at inner aspect of right arm ("postoperative residuals"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1983 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was most recently before the Board in January 2016, when it was remanded for additional development. The record before the Board consists of the Veteran's electronic records in Virtual VA and the Veterans Benefits Management System. FINDING OF FACT Throughout the period of the claim, the postoperative residuals include tenderness at the site of the excision but not muscle injury, nerve impairment, or limitation of motion of the elbow or forearm. CONCLUSION OF LAW The criteria for a rating of 10 percent, but no higher, for postoperative residuals have been met for the entire period of the claim. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7819-7804 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran participated in the pre-discharge program and received all required notice before his discharge from service and prior to the initial adjudication of the claim. The record also reflects that service records, VA treatment and examination records, and post-service medical evidence identified by the Veteran have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim decided herein; the Board is also unaware of any such evidence. The Veteran was provided examinations to determine the nature and severity of the postoperative residuals, most recently in 2016. The examiners reviewed the Veteran's pertinent history, and the examination records reveal findings necessary to rate the disability. Thus, the Board finds the examinations adequate. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the appellant's appeal. II. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). 10 percent ratings are provided for scarring that is deep and nonlinear and affects an area of six square inches (Diagnostic Code 7801) or superficial and nonlinear and affects an area of 144 square inches (Diagnostic Code 7802) or one or two scars that are painful or unstable (Diagnostic Code 7804). Higher ratings are provided for scarring that is deep and nonlinear and affects an area of at least 12 square inches (Diagnostic Code 7801) or at least three scars that are painful or unstable (Diagnostic code 7804). Any disabling effect not considered in a rating provided under diagnostic codes 7800-04 should be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis In October 2008, the Veteran underwent an excisional biopsy of a right elbow lipoma. The Veteran has reported pain and tenderness to pressure at the site of the excision. He has indicated that he was told that the excision could result in permanent nerve or tissue damage. A June 2009 VA examination record reveals the Veteran's history of lipoma excision with residual scar with "some" numbness and tingling in the area of the scar. The record notes that there was not functional impairment. Examination revealed normal coordination, sensation, motor functioning, and deep tendon reflexes. Peripheral nerve examination was normal. The scar measured 9 x 0.1 centimeter. It was linear and nonpainful, and there was no skin breakdown, inflammation, edema, keloid formation, disfigurement, or associated limitation of motion. The only objective residual of the lipoma excision was the scar. A January 2012 VA examination record reveals the Veteran's history that the scar was "extremely painful" with pressure. The Veteran described the pain with pressure as a severe, sharp, shooting pain. The Veteran also reported radiating sharp pain below the right elbow. The examiner noted that there was one painful scar. The scar was not unstable. It was linear and measured 12 centimeters. The examiner also noted a superficial nonlinear scar that affected an approximate total area of 2.4 square centimeter. The examiner found the scar resulted in limitation of function. The examiner explained that the Veteran had a slight decrease in strength of biceps flexion on the right arm, estimated as 4/5, and that the Veteran reported that pain from pressure to the scar made it difficult for him to do yard work or exercise. The examiner also found there was nerve damage from the surgery to remove the lipoma, such that pressure to the scar produced shooting pain down to below the right elbow and there was slight decrease in strength of biceps flexion. A February 2016 VA examination record reveals the Veteran's history of pain with movement in the location of the scar. He also reported pain with pressure on the scar and when he flexed his right arm and indicated that he felt some decreased strength with right hand grasp and right elbow flexion. He denied impact on occupational functioning or activities of daily living. Examination revealed mild depression in the area, compatible with loss of subcutaneous fat in the area of the lipoma removal, and tenderness with pressure. There was a linear scar measuring 12 centimeters that was not keloid, unstable, pigmented, or painful. There was no significant weakness of the right forearm with flexion or extension. There was no decreased sensation, and motor strength was full bilaterally. Examination of the right forearm and arm examination was normal, and there was no atrophy. There was no peripheral nerve condition. Radiographic imaging showed no significant abnormality and no evidence of soft tissue mass or fluid collection. In summary, the examiner found normal muscles of the right arm, no significant weakness, and no decreased sensation. The examiner noted that the Veteran denied tingling or numbness of the right arm or forearm. The examiner found there were some local residuals and scar where the tumor was removed but no muscle injury or nerve involvement of the right median/ulnar or radial nerve. Based on the Board's review of the evidence, the Veteran is entitled to a 10 percent rating for the entire period of the claim as analogous to Diagnostic Code 7804. Although the record is ambiguous as to whether the scar itself is tender, the record clearly indicates that the area of the lipoma excision has been tender throughout the period of the claim. As such, a 10 percent rating is warranted for the entire period of the claim. A higher rating is not warranted under 7804 as the evidence does not suggest the existence of three or more painful scars or areas. In this regard, the Board notes that there are at most two scars and one area of tenderness/pain on palpation. With respect to other potentially applicable diagnostic codes, there is no clinical evidence that the postoperative residuals involve an area of at least 12 square inches. Additionally, the clinical evidence indicates that the postoperative residuals do not result in limitation of function that could warrant a higher rating. There is no clinical evidence of muscle injury associated with the lipoma excision. Although the 2012 VA examiner found there was "nerve damage" and "limitation of function," the 2012 VA examiner did not identify the nerve purportedly damaged, the 2009 VA examiner found no limitation of function, and the 2016 VA examiner found no nerve impairment or limitation of function. With the exception of the finding of 4/5 bicep strength of 4/5 in 2012, clinical testing has revealed normal sensation, deep tendon reflex, and strength and no atrophy. Additionally, the 2016 VA examination record indicates that function of the arm and forearm, which would include range of motion, was normal. Although there is evidence of limitation of function due to pain, this pain is contemplated in the rating currently assigned, and the Board finds the postoperative residuals do not approximate even mild nerve impairment under 38 C.F.R. § 4.124a. In this regard, the Board finds the probative value of the clinical findings outweighs the Veteran's statements when determining the nature and severity of the postoperative residuals. The Board has considered whether the claim should be referred to the Director of the Compensation Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, as explained above, the manifestations of the postoperative residuals and its impact on motion and function are contemplated by the schedular criteria. The rating criteria provide higher or separate ratings for impairment of motion or for associated neurological impairment. The Board finds there is no chronic manifestation of the residual of lipoma which is not contemplated in the current ratings. Therefore, referral of the claim for extra-schedular consideration is not warranted. ORDER A 10 percent rating for the period of the claim for postoperative residuals is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs