Citation Nr: 1634109 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 10-01 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for chemical burn scars to the hands and wrists (chemical burn scars), currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1992 to July 1995. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. In August 2014, the Board remanded the case to the RO for further development and adjudicative action. In this case the Veteran has not specifically alleged that he is unemployable due to his service-connected chemical burn scars, and the record does not otherwise reasonably raise the issue of the Veteran being unable to engage in substantially gainful employment due to this disability. Thus, this appeal does not raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2014); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The issue of entitlement to service connection for a bilateral hand/wrist disability was raised by the record in a June 2008 statement. However, the Agency of Original Jurisdiction (AOJ) has not fully adjudicated this claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT For the entire period covered by this claim, the Veteran's service-connected chemical burn scars to the hands and wrists have been manifested by two scars that are painful; but they do not cause any additional functional limitation, are not unstable, do not cover an area of at least 39 square centimeters, and are not deep. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for chemical burn scars to the hands and wrists have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). VA's duty to notify was satisfied by a letter in September 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment records, and he was afforded two VA examinations, one in May 2009 and the other in October 2014. The Veteran has not reported that his chemical burn scars disability has worsened since the date of the latter examination. The agency of original jurisdiction (AOJ) substantially complied with the August 2014 remand orders, namely to ask the Veteran to identify any additional treatment he received and to conduct a new VA examination of the Veteran to assess the current severity of the Veteran's chemical burn scars, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on the foregoing, VA has satisfied its duties to notify and assist under the governing law and regulations. Increased Rating The Veteran seeks a rating in excess of 10 percent for the service-connected chemical burn scars to the hands and wrists. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Scar related disabilities are evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800 to 7805. The Veteran's service-connected disability has been rated under Diagnostic Code 7804. The Veteran filed his initial claim for an increased rating in June 2008, which was denied in a January 2009 rating decision. Thereafter, in March 2009, the Veteran filed a request for reconsideration. The claim was denied again in a July 2009 rating decision. The Veteran filed a July 2009 notice of disagreement, which is timely with the January 2009 rating decision. The criteria for ratings under DC 7800-7805 were amended effective October 23, 2008. The Board is required to consider the Veteran's claim in light of both the former and revised standards to determine whether an increased rating for his skin condition is warranted. However, VA's Office of General Counsel has determined that the amended rating criteria, if more favorable to the claim, can be applied only prospectively for periods from and after the effective date of the regulatory change. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g); and 38 C.F.R. § 3.114. The December 2009 statement of the case (SOC) indicates that the RO considered both the old and new criteria when rating the Veteran's hand scars. As an initial matter, DC 7800 requires involvement of the head, face, or neck, which is not at issue here. This is true under both versions of the regulation at issue in this case. Prior to October 23, 2008, 38 C.F.R. § 4.118, DC 7804 provided that superficial scars painful on examination warranted a maximum 10 percent evaluation. Prior to October 23, 2008, DC 7801 was characterized as scars, other than on the head, face, or neck, that are deep or that cause limited motion. A 10 percent rating was warranted where the scar area or areas exceeded 6 square inches (39 square centimeters), a scar area or areas exceeding 12 square inches (77 square centimeters) warranted a 20 percent rating, area or areas exceeding 72 square inches (465 square centimeters) warranted a 30 percent rating, and area or areas exceeding 144 square inches (929 square centimeters) warranted a 40 percent rating. A 10 percent evaluation was warranted under DC 7802 for scars other than of the face, head, or neck that were superficial and did not cause limited motion if they were in an area or areas greater than 144 square inches. A 10 percent evaluation was warranted under DC 7803 for superficial, unstable scars. Scars could also be rated based on limitation of function of the affected part under DC 7805. The revised version of DC 7804 provides that one or two painful or unstable scars warrant a 10 percent evaluation, three or four scars that are unstable or painful warrant a 20 percent evaluation, and five or more scars that are unstable or painful warrant a 30 percent evaluation. The revised criteria under DC 7801 similarly provides for higher evaluations for scars other than of the face, head, or neck if they are deep and nonlinear. Under the revised criteria, DC 7803 was eliminated. The revised criteria under DC 7805 provides that any disabling effects not considered in a rating provided under DCs 7800-7804 are to be considered under an appropriate diagnostic code. Factual Background The Veteran seeks an evaluation in excess of 10 percent for the service-connected chemical burn scars currently rated under DC 7804 for superficial painful scars of the hand and wrist that are not deep or unstable. A VA treatment note from April 2008 indicates that the Veteran complained of chemical burns on both hands with a dull ache all the time. The Veteran also reported that when he uses his hands too much, his grip is affected. The Veteran rated the pain in his hands a five out of ten. The staff physician, Dr. T.L., planned for imaging of the Veterans hands and an electromyography nerve conduction study was scheduled for May 2008. However, the Veteran failed to report for this development and subsequently did not follow up. The Veteran had a VA examination in May 2009. The Veteran complained of pain over the dorsal aspect of both hands, with greater pain in the right versus the left hand. The Veteran reported the pain occurs with gripping and reported daily discomfort with writing, but denied marked pain. He worked as a manager at a restaurant and did not perform physical work as part of his job. The VA examiner's report indicates that the Veteran's right hand scar measured three centimeters at its maximum width, 15 centimeters at its maximum length, and was non-tender to palpation, with no adherence to the underlying tissue, no limitation of motion or loss of function, no underlying soft tissue damage, no skin ulceration or breakdown, no underlying tissue loss, and no elevation or depression of the scar. The VA examiner reported that the right hand scar is the same color as normal skin, the texture of the scarred area is normal, and there is no induration or inflexibility. The Veteran's left hand scar measured five centimeters at its maximum width, 20 centimeters at its maximum length, and was non-tender to palpation. The VA examiner indicated there was no adherence to the underlying tissue, no limitation of motion or loss of function, no underlying soft tissue damage, no skin ulceration or breakdown, no underlying tissue loss, and no elevation or depression of the scar. The VA examiner reported that the left hand scar is the same color as normal skin, the texture of the scarred area is normal, and there is no induration or inflexibility. The Veteran's range of motion in both his wrists and both his hands was normal and there was no loss of motion on repetition, additional limitation of joint function, or lack of endurance. The VA examiner diagnosed the Veteran with burn scars on his right hand and burn scars on his left hand. The VA examiner reported that there is no range of motion or physical limitation of movement of the hands, fingers, or wrists. The VA examiner opined that the Veteran's hand pain symptoms are suggestive of early degenerative joint disease, but because the degenerative joint disease did not appear on imaging, the VA examiner could not make a diagnosis. However, the VA examiner did state that the Veteran's chemical burns do not cause the hand pain. The imaging associated with the report reflected no abnormality in the Veteran's hands. The VA examiner also filled out an examination report for a skin condition. The Veteran reported an infection on the dorsal aspect of the right hand three times from 1994 to 2006. The Veteran reported that he experienced a skin infection that gets red with some orange pus for seven to ten days and dries up. The Veteran reported this skin infection occurred in 1994, 1998, and 2006, but he did not seek medical care for the latter two infections. The VA examiner did not diagnose the Veteran with a skin disease, and reported a normal examination and with a finding of a resolved infection. In his January 2010 substantive appeal (VA-Form 9), the Veteran reported pain in both hands associated with the chemical burn area, throbbing in both hands, greater pain in the right hand, and grasping problems with both hands. The Veteran had another VA examination in October 2014. The VA examiner reported that the Veteran's scars are not painful, are not unstable, and are without frequent loss of skin covering the scar. The VA examiner observed the Veteran's scars to be on both hands and wrists and to be less than deep with partial thickness. The VA examiner reported the Veteran's scars were on the dorsum of both hands and wrists, were superficial non-linear, and were shown as multiple scars with confluence. No other extremity, the trunk, the head, the face, or the neck reflected scars. The VA examiner observed the scars on both hands to be approximately four square centimeters. None were deep non-linear scars. Both the Veteran's wrists demonstrated a loss of range of motion. The right wrist range of motion was reduced to 60 degrees palmar flexion with 70 degrees dorsiflexion, and the left wrist to 50 degrees dorsiflexion with 70 degrees palmar flexion. Imaging of the Veteran's wrists and hands was normal and there was no functional impact on his ability to work reported. The VA examiner noted, however, during service it was felt that the Veteran may have rheumatologic or Marfan condition in addition to the scarring. The VA examiner noted that the examination revealed well healed burn scars over the dorsal surfaces of the wrists and hands, bilateral decreased motion of the wrists, normal imaging with no degenerative joint disease, and no significant rheumatologic inflammatory disease indicators. The VA examiner opined that the Veteran's burn scars are quite stable and are not appreciably worse at this time. The VA examiner also noted that the etiology of the Veteran's wrist and hand stiffness is undetermined. Analysis The Board finds that an increased rating for the Veteran's service-connected chemical burn scars is not warranted. Rating the Veteran's chemical burn scars according to the criteria in effect prior to October 23, 2008 does not result in a higher evaluation. DC 7804 provided for a maximum 10 percent evaluation. DC 7801 and 7802 provide for higher than 10 percent evaluations based on the area covered by the scar. However, the October 2014 VA examiner noted that the Veteran's scars were only four square centimeters each. Thus, under the prior DC 7801 and 7802, a non-compensable rating would be assigned for each scar and the Veteran would not be entitled to a rating higher than 10 percent. The Veteran's scars have not been found to be unstable so a rating under DC 7803 would not be warranted. Under DC 7805, as further explained below, there are no uncompensated disabling effects of the Veteran's chemical burn scars to rate under another diagnostic code. The VA examinations of record support the conclusion that the Veteran's chemical burn scars are appropriately rated under the current version of the rating criteria. Under DC 7804, one to two scars that are painful or unstable warrant a 10 percent evaluation. A higher rating is not warranted unless there are three or more scars that are painful or unstable, or the scars are both unstable and painful. Both the May 2009 and October 2014 VA examiners found two scars, one on the right hand and wrist and one on the left hand and wrist. The October 2014 VA examiner noted that there were "multiple scars" present, but then noted "confluence." Further, the VA examiner noted immediately prior to this finding that the Veteran has one scar on his left hand and wrist and one scar on his right hand and wrist. This report is consistent with photographs from May 2009 showing a single scar in each hand that branches out from the central scar. Thus, the evidence shows that the Veteran has a single non-linear scar with confluence that branches on each hand, but not multiple separate scars. The Veteran did report that he had infections on his hand that resolved during the May 2009 examination. However, the Veteran did not report that any of these skin infections happened during the pendency of his appeal, and the most recent occurred in 2006. Thus, the evidence does not show that the Veteran's scars are both painful and unstable. Based on this evidence, the Veteran's chemical burn scars are not entitled to a higher evaluation under DC 7804. However, as mentioned above, VA must consider all diagnostic codes that could potentially afford the Veteran a higher rating. DC 7800 does not apply because the Veteran's scars do not involve the head, face, or neck. DC 7801 requires that the Veteran's scars cover an area of at least 77 square centimeters to warrant a 20 percent evaluation. The May 2009 VA examiner did not assess the area covered by the Veteran's scars, but the October 2014 VA examiner found that each scar covered four square centimeters. As such, a higher rating is not warranted under DC 7801. Further, under DC 7801 the scar must be deep and nonlinear, but the October 2014 VA examiner found the scars to be less than deep. DC 7802 does not provide for a rating in excess of 10 percent, and the Veteran's scar is not 929 square centimeters or greater, so a higher rating than the Veteran's current 10 percent is not possible under this code. Thus, the Veteran is not entitled to a higher rating under DC 7800-7802. DC 7805 requires that any disabling effects of scars rated under DC 7800-7804 be rated under appropriate diagnostic codes if these disabling effects are not already compensated under the DC 7800-7804 rating criteria. The only functional impairments noted by the VA examiners are pain, bilateral decreased range of motion, and trouble grasping. The Veteran complained of trouble grasping and the treatment notes indicate the same. DC 7804 incorporates a rating for pain, so the only uncompensated disabling effects of the Veteran's hands are decreased range of motion and trouble grasping. The October 2014 VA examiner opined that the Veteran's burn scars are stable and that the etiology of the wrist and hand stiffness is undetermined at this point. The May 2009 VA examiner found that the Veteran's scars are non-tender to palpation, do not adhere to the underlying tissue, do not limit motion or function, and do not cause underlying tissue loss, among other findings. The October 2014 VA examiner observed that the Veteran's scars were superficial, non-linear, less than deep, of partial thickness, and not responsible for functional impact. Further, the October 2014 VA examiner noted that the Veteran's wrist and hand stiffness is related to an unknown etiology, but the Veteran's chemical burn scars are stable. Thus, the VA examinations when taken together make clear that the Veteran's chemical burn scars do not result in uncompensated functional loss, such as stiffness or limitation of motion. As such, rating under DC 7805 of these symptoms is not warranted. To the extent that the Veteran's contentions conflict with the VA examiners' opinions, the Board finds the opinions of the VA examiners more persuasive. The Board acknowledges that a layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). However, while the Veteran is competent to report symptoms such as pain in his hands or trouble grasping, the question of whether that pain or trouble grasping is etiologically related to his scars requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion. See 38 C.F.R. § 3.159. Thus, the Veteran's opinion that his chemical burn scars cause grasping difficulties is not as persuasive as the opinions of the May 2009 and October 2014 VA examiners that his scars do not cause functional loss. In short, the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected chemical burn scars. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b)(2014); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected chemical burn scars are contemplated and reasonably described by the rating criteria discussed above. For instance, the stability, pain, and area of the scars are all adequately addressed by the rating criteria. The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Board finds that the available schedular evaluations are adequate to rate the disability. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. ORDER Entitlement to a rating in excess of 10 percent for the chemical burn scars to the hands and wrists is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs