Citation Nr: 1803173	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  13-06 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to a compensable evaluation for scar, right leg.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Banks, Associate Counsel


INTRODUCTION

The Veteran had active duty from July 1966 to December 1973 and from October 1990 to May 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

The Board notes that the Veteran has also appealed March 2014 and May 2015 rating decisions issued by the same RO.  However, the Veteran requested hearings on the issues denied therein, and those hearings have not yet been held.  See VA Form 9, Appeal to Board of Veterans' Appeals, received in July 2014; VA Form 9, Appeal to Board of Veterans' Appeals, received in November 2015.  Therefore, those issues will not be addressed herein, and they will be adjudicated separately by the Board, if otherwise in order, after the requested hearing(s) has/have been completed.  The Veteran expressly did not request a hearing in his February 2013 Substantive Appeal addressing the right leg scar issue.

The issue of entitlement to service connection for popliteal aneurysm has been raised by the record in April and May 2015 notes in the Veteran's VA treatment records, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  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) (2017).


FINDING OF FACT

The preponderance of the evidence weighs in favor of a finding that the Veteran has a scar on his right leg that is painful.


CONCLUSION OF LAW

The criteria for a 10 percent rating for the Veteran's scar on his right leg have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7804 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

With respect to the Veteran's claim of entitlement to a compensable evaluation for scar, right leg, As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

In this regard, the Board specifically acknowledges the Veteran's contention that the December 2012 VA examination report (actually the January 2013 VA examination report) is inadequate since the examiner that conducted the examination was a hematologist, according to the Veteran's representative.  See  Appellant's Brief dated in August 2017.  However, the Board is entitled to presume the competence of VA examiners.  See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007).  When, in the judgment of the Secretary, an expert medical opinion is warranted by the medical complexity or controversy involved, the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department.  See 38 U.S.C. §§ 5109(a), 7109(a).  However, such measures are not necessary in this case.  All that was required of the VA examiner in this case in order to successfully complete the required VA examination report was essentially just the measurement of the size of and the description of the character and the effects of the Veteran's scar.  The Board  thus finds that the VA examination reports of record, including the January 2013 report, are adequate.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

II.  Relevant Laws and Regulations

	A.  Increased Ratings Generally

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017).  Separate diagnostic codes identify the various disabilities.  38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  When the appeal is from the initial rating assigned with a grant of service connection, the severity of the disability during the entire period from the grant of service connection to the present is to be considered.  Fenderson v. West, 12 Vet. App. 119 (1999).  But where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Thus, in those latter cases, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  

A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Therefore, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings.  Id.; Fenderson, 12 Vet. App. 119.

	B.  Applicable Diagnostic Codes

Scars are evaluated pursuant to Diagnostic Codes (DCs) 7800, 7801, 7802, 7804, and 7805.  38 C.F.R. § 4.118.  The Veteran's scar on his right leg (or, more specifically, his right popliteal fossa) is currently evaluated as noncompensable under DC 7801.

DC 7800 provides ratings for scars and disfigurement of the head, face or neck.  DC 7801 provides ratings for scars, other than those on the head, face, or neck, that are deep or that cause limited motion).  Under DC 7801, a 10 percent rating is warranted for scar(s) with an area or areas of at least 6 square inches (39 sq. cm.).  A 20 percent rating is warranted for scar(s) with an area or areas of at least 12 square inches (77 sq. cm.).  A 30 percent rating is warranted for scar(s) with an area or areas of at least 72 square inches (465 sq. cm.).  A 40 percent rating, the highest rating available under DC 7801, is warranted for scar(s) with an area or areas of at least 144 square inches (929 sq. cm.).

Scars, other than those on the head, face, or neck that are superficial and nonlinear are rated pursuant to DC 7802.  Under DC 7802, a 10 percent rating is warranted for scar(s) with an area or areas of at least 144 square inches (929 sq. cm.).

Scars that are unstable or painful are rated under DC 7804.  Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A 30 percent rating is warranted for five or more scars that are unstable or painful.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, DC 7804, Note (1).  If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.  Id. at Note (2).  Scars evaluated under DCs 7800, 7801, 7802 or 7805 may also receive an evaluation under DC 7804, when applicable.  Id. at Note (3).

Other scars and effects of scars are evaluated under DC 7805.  Under DC 7805, any disabling effects of scars not considered in a rating provided under DCs 7800-04 are to be rated under another appropriate DC.

	C.  Evidentiary Standards

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Competent medical evidence is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible, as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  Caluza, 7 Vet. App. 498, 511-12.

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 veteran.  38 U.S.C.A. § 5107(b). 

III.  Facts and Analysis

The Board has reviewed all evidence of record, including but not limited to the Veteran's written statements/submissions, his private medical records, his VA treatment records, his friend's/colleagues'/fellow sevicemembers' statements (buddy statements), and the VA examination reports of record.  However, the Board finds the Veteran's statements, his VA treatment records, and the VA examination reports to be the most pertinent evidence of record, as those pieces of evidence provide the most significant and detailed evidence of the size, quality and effects/symptoms of the Veteran's right leg scar.

The Veteran has consistently complained that this scar is painful.  See, e.g., VA Form 21-526b, Veteran's Supplemental Claim for Compensation, received in May 2010; VA Form 21-4138, Statement in Support of Claim, received in July 2011.  His VA treatment records also reflect that he has complained of pain in the area of his scar on his right popliteal fossa.  See VA Treatment Notes dated in April and May 2015.  However, neither the Veteran's statements nor his VA treatment records give much additional information as to the size, characteristics or effects of this scar.

The Veteran was afforded multiple VA examinations in relation to this claim, including in July 2011 and January 2013.  Both examiners noted only one scar on the Veteran's popliteal fossa and neither found that scar to cover a surface area of 6 square inches or more.  Thus, the Veteran is not entitled to an increased evaluation under DCs 7800, 7801 or 7802.  Both examiners indicated that the scar is not painful or unstable, and the Veteran has not asserted that it is unstable.  However, he has consistently asserted, as reflected in nearly all relevant evidence other than the VA examination reports, that it is painful.  Given the Veteran's consistency in those assertions, and the fact that he is clearly competent to report symptoms such as pain, the Board finds that the scar is indeed painful.  Thus, the Veteran is entitled to a compensable, 10 percent rating for his service-connected right leg scar under DC 7804.  See 38 C.F.R. § 4.118.  There is no indication that the scar itself is productive of any disabling effects as might support a rating under Diagnostic Code 7805, and there is accordingly no basis for an evaluation in excess of 10 percent.

Accordingly, at this point, the Board finds that the Veteran is entitled to a 10 percent rating, but no greater, for his right leg scar.  To this extent, the appeal is granted.



ORDER

Entitlement to a 10 percent evaluation for the Veteran's scar, right leg, is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs