Citation Nr: 1805288	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  06-24 885	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to an increased evaluation higher than 10 percent for scarring, as a residual of a left pneumothorax and thoracotomy.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from July 1983 to January 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, denied the Veteran's claim for an evaluation higher than 10 percent for scarring, as a residual of a left pneumothorax and thoracotomy.  Later, following the Veteran's relocation, jurisdiction was transferred to the RO in North Little Rock, Arkansas.

In an April 2009 Travel Board hearing, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board.  A transcript of the proceeding has been associated with the claims file.  Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal.  See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  As the VLJ who conducted the Board hearing is no longer employed by the Board, she cannot participate in the adjudication of the Veteran's claim.  Consequently, in September 2011, the Board sent the Veteran a letter requesting that he indicate whether he would like another opportunity to testify before the Board.  The Veteran requested another hearing in a September 2011 letter, so, in an October 2011 decision, the Board remanded the claim to the Appeals Management Center (AMC) to afford him his requested hearing.  In September 2013, the Veteran testified before the undersigned VLJ at a Travel Board hearing.  A transcript of the hearing is of record.  Accordingly, the Board will proceed with addressing the appeal.

This case was before the Board in June 2009, where the claim was remanded for further development, to include affording the Veteran a new VA compensation examination.  Upon completion of such development, on remand, the AMC granted service connection for status-post left thoracotomy with residual discomfort and tightness of chest musculature with secondary involvement of the left shoulder-however, this issue is not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues).

Subsequently, the AMC continued to deny the Veteran's claim for increase, as reflected in an August 2010 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further review.


FINDING OF FACT

The evidence demonstrates that the Veteran has four scars on the left lateral chest, as a residual of a left pneumothorax and thoracotomy, which are painful.


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for an increased evaluation of 20 percent, but no higher, for painful scarring, as a residual of a left pneumothorax and thoracotomy have been met.  38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.118, Diagnostic Code 7804 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, which is necessary to substantiate 
the claim.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For increased rating claims, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life").

Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Nonetheless, in a September 2005 letter, the Veteran was informed of what evidence was required to substantiate his claim for increase, and of his and VA's respective responsibilities in obtaining evidence.  Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in the February 2009 SOC, as well as in the August 2010 SSOC.  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Therefore, the Board finds that VA's duty to notify is satisfied.

Regarding the duty to assist, the Board sees that the claims file contains relevant post-service medical records and the Veteran's written statements.  Neither the Veteran nor his representative has identified, nor does the record otherwise indicate, any other evidence relevant to this claim that is obtainable and has not been obtained.  Furthermore, he was afforded VA compensation examinations assessing and reassessing the severity of his service-connected scarring, as a residual of a left pneumothorax and thoracotomy.  Upon review of the medical evidence, the Board concludes that these examination reports and the other medical records in the file, collectively, so in the aggregate, provide the information needed to render a decision in this case.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Increased Rating for Residual Scarring

When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings and is employed for initial or established ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  If the evidence for versus against a claim is in equipoise, then the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4.  These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to him.

As it now stands, service connection has been established for scarring, as a residual of a left pneumothorax and thoracotomy, at 10 percent disabling from April 9, 1991 under 38 C.F.R. § 4.118, Diagnostic Code 7804.  Scars are evaluated pursuant to Diagnostic Codes 7800, 7801, 7802, 7804, and 7805 under 38 C.F.R. § 4.118.

DC 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear and provides for a 10 percent evaluation when the area or areas exceed six sq. inches (39 sq. cm.).  A 20 percent evaluation is assigned when the area or areas exceed 12 sq. inches (77 sq. cm.).  Note 1 provides that a deep scar is one associated with underlying soft tissue damage.

DC 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear.  Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 sq. inches (929 sq. cm.) or greater.  Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage.

DC 7804 applies to scars that are unstable or painful.  A 10 percent evaluation is warranted for one or two scars that are unstable or painful.  A 20  percent evaluation is warranted for three or four scars that are unstable or painful.  A 30 percent evaluation is warranted for five or more scars that are unstable or painful.  Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note 2 provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars.  Note 3 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7805 may also receive an evaluation under this Diagnostic Code, when applicable.

DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804.  Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code.

In this case, the medical evidence of record establishes that the Veteran underwent a left thoracotomy in 1987.  The record further establishes that he has residual scarring that consists of four scars located along the left lateral chest area.  See, e.g. VA Examination Reports dated in Oct. 2005, July 2010, and Mar. 2012 (identifying four linear scars of varying lengths).  Based on the existence of four scars due to the Veteran's left thoracotomy, the remaining question before the Board is whether his scars are unstable and/or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804.

The Veteran was afforded a VA scars/disfigurement examination in March 2012, where the examiner identified four linear scars on the left lateral chest.  Although five other scars were identified, the examiner indicated that these scars on the right lateral chest area were associated with a right thoroscopy.  The Veteran reported intermittent pain in the scars.  He described the pain as a deep aching pain beneath the scars.  Following physical examination, the examiner indicated that the four left lateral chest scars are painful, but are not unstable.

During the September 2013 Travel Board hearing, the Veteran testified that his scars are painful.  See, e.g. Board Hearing Transcript at 21.

The remaining medical evidence of record reflects that the Veteran was afforded several additional VA compensation examinations assessing and reassessing other residuals of his pneumothorax and thoracotomy.  See, e.g. VA Examination Reports dated in Sept. 2014, July 2015, and Dec. 2015.  However, while the VA examiners documented the existence of the Veteran's residual scarring, they were "not asked to evaluate [the scars]" and, consequently, directed the fact finder to "refer to the last scar examination."  See, e.g. July 2015 Examination Report.

In light of the foregoing, the Board resolves all reasonable doubt in the Veteran's favor, and finds that all four of his scars on the left lateral chest, as a residual of a left pneumothorax and thoracotomy, are painful.  Accordingly, an increased evaluation of 20 percent for the Veteran's four painful scars is warranted under 38 C.F.R. § 4.118, DC 7804.  However, as a rating higher than 20 percent under DC 7804 requires either (1) the existence of five or more painful scars, or (2) one or more scars being both painful and unstable, a higher rating is not appropriate due to the existence of only four painful, but not unstable, scars.  38 C.F.R. § 4.118.

The Board has considered whether an extraschedular evaluation is warranted for the issue on appeal, however, in this case, the schedular evaluation is adequate.  The symptoms of the Veteran's painful scarring have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that his disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

The Board reiterates that an increased evaluation of 20 percent, but no higher, for four painful scars is warranted.  As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

For the entire period on appeal, entitlement to an increased evaluation of 20 percent, but no higher, for painful scarring, as a residual of a left pneumothorax and thoracotomy, is granted.



____________________________________________
M. H. Hawley
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs