Citation Nr: 18142913 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 14-31 383 DATE: October 17, 2018 REMANDED The claim of entitlement to an initial disability rating in excess of 10 percent for painful scarring of the anterior trunk and left lower extremity, status post coronary artery bypass graft surgery, is remanded. The claim of entitlement to an initial compensable disability rating for scarring of the anterior trunk and left lower extremity, status post coronary artery bypass graft surgery, is also remanded for additional development. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from August 1963 to August 1967. The Veteran received the Vietnam Service Medal and the Vietnam Campaign Medal, among other commendations. By way of background, in March 2013, the Veteran filed a claim for service connection for a scar on his chest, as well as for a scar on his left thigh, both secondary to his coronary artery bypass graft for his service-connected heart disability. In a November 2013 rating decision, the local Regional Office (RO) awarded service connection for painful scarring, status post coronary artery bypass graft, secondary to the Veteran’s service-connected heart disability, and assigned a 10 percent disability rating, on the basis that the two scars on his anterior trunk and left lower extremity were painful. The RO also awarded service connection for scarring, status post coronary artery bypass graft, secondary to the Veteran’s service-connected heart disability, and assigned a noncompensable disability rating, on the basis that the scars on his anterior trunk and left lower extremity were linear. Thereafter, in December 2013, on two separate occasions, the Veteran filed a claim for an increased rating for the scar on his left thigh. In a March 2014 rating decision, the RO continued the initial evaluations assigned in conjunction with the Veteran’s scars to the chest (anterior trunk) and left thigh (left lower extremity). Then, in May 2014, the Veteran, in pertinent part, filed a claim for an increased rating, specifying that his claim was in relation to the scarring of the left lower extremity. Shortly thereafter in June 2014, the Veteran filed a notice of disagreement (NOD), appealing the decision related to scarring, status post coronary artery bypass graft, stating that the donor site scar was painful/tender, adhesed [sic], and unsightly. A July 2014 Report of General Information indicates that an informal conference was held with the Veteran’s representative to clarify the Veteran’s intent as to which scars he wished to appeal. The Veteran’s representative clarified that it was the Veteran’s intent to appeal all of the scars associated with the coronary artery bypass graft as unsightly, adhesed [sic] and painful. Therefore, as further clarified by the Veteran’s representative, both the initial 10 percent and noncompensable disability ratings for the scars were intended to be included in the June 2014 NOD. See July 2014 Report of General Information. Thus, regarding the scars associated with the coronary artery bypass graft, while the Veteran submitted several filings, including increased rating claims and a NOD, in response to the rating decisions dated November 2013 and March 2014, the Board of Veterans’ Appeals (Board) construes the Veteran’s various filings as an intent to appeal the initial evaluations of all scars associated with the coronary artery bypass graft for his service-connected heart disability. The Board notes that all such filings by the Veteran were submitted within one year of the initial November 2013 rating decision. As such, the Board finds that the Veteran timely filed a NOD; thus, the issues have been restated accordingly on the title page. The Board notes that additional VA treatment records were associated with the claims file after the issuance of the July 2014 statement of the case (SOC). As the Agency of Original Jurisdiction (AOJ) will have an opportunity to review all of the new evidence on remand, no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. See 38 C.F.R. §§ 20.800, 20.1304. As a final matter, the Board notes that during the course of the present appeal, a claim of entitlement to a total disability rating based on individual unemployability (TDIU) was raised by the Veteran. While a claim for TDIU may be part and parcel of an increased rating claim on appeal, the Veteran’s claim for TDIU has been separately considered and granted by the RO in a January 2016 rating decision. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). The Veteran has not appealed the assigned effective date. Accordingly, that issue is not before the Board and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) is warranted. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to increased disability ratings for his service-connected scars of the anterior trunk and left lower extremity associated with his coronary artery bypass graft surgery. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). The Board notes that the Veteran was last afforded a VA examination to assess the severity of the service-connected scars in June 2014, over four years ago. When a claimant alleges that his or her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). On VA examination in June 2014, the examiner noted that the Veteran had a total of four scars associated with his coronary artery bypass graft – one on his left upper medial leg, and three on his anterior trunk. The examiner further noted that the scar on the left upper medial leg, as well as one of the scars on the anterior trunk were painful. None of the scars were noted to be unstable. In his August 2014 substantive appeal (VA Form 9), the Veteran stated that the surgical scar on his left leg was both painful and unstable, indicating that it would “scab” over then peel off again. He further indicated that the scars on his chest area were aggravating and quite painful at times. He stated that he found himself massaging these areas for comfort. See August 2014 VA Form 9. The Board notes that in the September 2018 informal hearing presentation, the Veteran’s representative indicated that the scars had healed and were stable; however, the Veteran continued to experience pain and discomfort from all of the scars. See September 2018 informal hearing presentation. Therefore, the Veteran continues to contend that all four scars are painful, not just the two as indicated in the June 2014 examination. As such, the Veteran continues to assert that the severity of his scars is worse than what was revealed in the June 2014 examination, and that the pain associated with all of his scars have increased. Therefore, in light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran’s service-connected scars of the anterior trunk and left lower extremity associated with his coronary artery bypass graft surgery for his service-connected heart disability. Finally, on remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his scars on his anterior trunk and left lower extremity. The examiner must review the claims file and all previous VA examination reports. The examination report should also show consideration of the Veteran’s documented medical history and assertions/complaints. All indicated studies, should be completed, and all clinical findings reported in detail. The examiner is requested to comment on the severity of the Veteran’s service-connected scars throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the SOC issued in July 2014. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel