Citation Nr: 1736601	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  12-10 976	)	DATE
	)
	)

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


THE ISSUE

Entitlement to a compensable disability rating prior to November 30, 2016, and in excess of 10 percent thereafter, for a scar on the right parietal scalp.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Baskerville, Counsel 

INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from March 1999 to February 2007.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2010 and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  

In August 2016, the Veteran testified at a Central Office Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  

In October 2016, the Board remanded the matter for additional development.  The Board is satisfied there was substantial compliance with its remand orders.  See Stegall v. West, 11 Vet. App. 268 (1998); Dymant v. West, 13 Vet. App. 141 (1999).  In October 2016, the Board remanded the matter of entitlement to service connection for traumatic brain injury for further development.  In a March 2017 rating decision, the Appeals Management Center (AMC) granted the matter of entitlement to service connection for TBI.  The Board finds that the grant represents a full grant of the benefit sought.  Thus, the claim for entitlement to service connection for TBI is no longer before the Board.

In a March 2017 rating decision, the Appeals Management Center (AMC) increased the rating for scar, right parietal scalp to 10 percent, effective November 30, 2016.  As this is not the maximum benefit allowed, it is considered only a partial grant of the benefit sought on appeal; therefore, the claim for entitlement to an increased rating for scar if the right parietal scalp is still on appeal.

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.



FINDING OF FACT

During the entire period on appeal, the Veteran's scar on the right parietal scalp has been manifested by subjective symptoms of pain and tingling and objective signs of one (1) stable scar.  There is no competent evidence that the scar is unstable.


CONCLUSIONS OF LAW

1.  Prior to November 30, 2016, the criteria for an initial rating of 10 percent, but no higher, for scar on the right parietal scalp have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7804 (2016).

2.  From November 30, 2016, the criteria for an initial rating of 10 percent for scar on the right parietal scalp have not been met or approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7804 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b).  In April 2010, the agency of original jurisdiction (AOJ) sent a letter to the Veteran providing the notice required for the initial claim of service connection for a head scar.  Service connection was subsequently granted, and the Veteran appealed the assigned noncompensable rating for scar of the right parietal scalp, effective August 4, 2009.  The Veteran was subsequently granted an increased rating of 10 percent, effective November 30, 2016.  In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103 (a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  That burden has not been met in this case.  Neither the Veteran nor his representative alleges such prejudice in this case.  Therefore, no further notice is needed. 

Regarding the duty to assist, VA obtained the Veteran's VA treatment records and private treatment records.  The Veteran was afforded VA examinations in February 2011 and November 2016.  Although the February 2011 examiner indicated that the claims folder was not reviewed, an increased rating claim concerns the current severity of a disability.  The examiner provided such an assessment.  The November 2016 examiner reviewed the Veteran's claims folder and provided the current severity of the Veteran's scar.  Therefore, the Board finds that the examinations are adequate for rating purposes.

Accordingly, the Board finds that the VA has met its duty to assist and will address the merits of the claim.

II.  Rating Criteria 

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016).  The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 (2016).

Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).  In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability.  Schafarth v. Derwinski, 1 Vet. App. 589, 594 (1991).

III.  Increased Rating for Scar on Right Parietal Scalp

The Veteran contends that he is entitled to a compensable rating for the scar he suffered secondary to several head traumas during active service.  The Veteran was initially assigned a noncompensable rating for his scar of the right parietal scalp with subjective pain under Diagnostic Code 7805.  He was subsequently assigned a 10 percent rating, effective November 30, 2016, under Diagnostic Code 7804.  

The criteria for rating scars were revised, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805).  The amendment applies to all applications for benefits received by VA on or after October 23, 2008.  See 73 Fed. Reg. 54708 -54710 (Sept. 23, 2008); see also 38 C.F.R. § 4.118.  The Veteran's claim was after October 23, 2008 so therefore the revised criteria will be applied to the Veteran's claim. 

Under the rating criteria in effect since October 28, 2008, Diagnostic Code (DC) 7804, provides a 10 percent rating for one or two unstable or painful scars.  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 scares that are unstable or painful.  Note (1) of the Diagnostic Code reads that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar.  Note (2) reads that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) reads that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code when applicable.

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118.

In an October 2009 correspondence, the Veteran stated that he has "a huge scar where [his] head was sewn up and chronic pain in that area, all of which is due to the incident where [he] was slammed onto a concrete floor by a fellow marine."  He further writes that, "[t]his defacement of my head has a huge effect on my physical appearance and I have to look at it everyday."  

The Veteran was afforded a VA traumatic brain injury (TBI) examination in April 2010.  The examiner did not address the Veteran's scar so the RO requested an addendum regarding the scar.  In an email, the examiner stated that the Veteran's head scar was unremarkable and "well healed after all these years" and that there was no pain.  He did not provide any further details so the RO ordered a VA scars examination.  

The Veteran was afforded a VA scars examination in February 2011 where the examiner noted that the Veteran had a "y" shaped right posterior right parietal scar which was well healed.  The examiner noted that, "[e]ven with firm palpation, the examiner did not elicit any pain/withdrawal response."  The scar measured 0.2 centimeters in width and 4.0 centimeters in length.  "Scar is not painful; has no signs of skin breakdown; is superficial; has no inflammation, no edema, or no keloid formation; has no abnormal texture; has no hypo- or hyper- pigmentation; has no underlying soft tissue loss; skin is not indurated or inflexible; contour is elevated or depressed; is not adherent to underlying tissue; has no other disabling effects."  The examiner noted that the Veteran reported pain.  In that regard, the Veteran reported that the scar was always tender and that he can't wear a hat because it feels tight.  He also reported that the scar is tender and gets red easily and he can't sleep on his back anymore due to the scar pain.  The examiner diagnosed the Veteran with scar of the right parietal scalp with subjective pain.  

The Veteran was most recently afforded a VA examination in November 2016 where the examiner replied "yes" to the question of whether the Veteran had any scars that were "painful or unstable, have a total area equal to or greater than 39 square cm (6 square inches), or are located on the head, face or neck."  The examiner commented in response to the question that the Veteran had a small 5 centimeter scar on the right occipital.  

At the August 2016 Board hearing, the Veteran testified that he feels "tingling quite a bit" in the area of his head scar.  He testified that when he touches the area where the scar is, it is really sensitive.  

Based on the foregoing, the Board finds that the Veteran is entitled to a 10 percent rating, but no higher, for the entire period on appeal under Diagnostic Code 7804.  In that regard, the Board credits the Veteran's statements regarding the severity of his scar.  The Veteran has consistently reported painful and tingling in the area where he has a scar.  As noted above, DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful.  The regulations do not limit pain to objective or subjective pain.  Although the previous examiner noted that the Veteran had subjective pain and did not demonstrate objective signs of pain upon palpation, the Board finds that there is sufficient competent and credible evidence of pain.  The Veteran is competent to report symptoms of pain as they are subject to his observation.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

The Board further finds that the Veteran is not entitled to a higher rating under DC 7804 because the Veteran only has one (1) scar and entitlement to a higher rating requires either 3 or more scars or an unstable and painful scar.  There is no evidence that the Veteran's single scar is unstable.  Note (1) defines unstable as one where, for any reason, there is frequent loss of covering of skin over the scar. 

The Board has given consideration as to whether the Veteran is entitled to compensation for his scar under any other Diagnostic Code, to include DC 7805.  DC 7805 provides that other scars and other effects of scars be evaluated under 7800-7804.  However, the Veteran's scar does not have at least one characteristic of disfigurement as described and required under DC 7800; and his scar is on the head, which is a specifically excluded area under DCs 7801 and 7802.  

Accordingly, the Board finds that the Veteran's symptoms have remained the same throughout the entire period on appeal and finds that a 10 percent rating, prior to November 30, 2016, is appropriate.  The Board likewise finds that the Veteran is not entitled to a rating in excess of 10 percent thereafter.  

IV.  Extraschedular Consideration

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, the Board finds that the schedular rating criteria is adequate to rate the Veteran's scar of the right parietal scalp.  The Veteran's scar is manifested primarily by pain and tingling.  These manifestations are contemplated by the rating criteria, which consider pain.

Also, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (2014).  In this case, the Veteran is service connected for headaches, bilateral ankle sprain, tinnitus, traumatic brain injury (TBI), scar of the right parietal scalp, and allergic rhinitis.  The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's headaches, bilateral ankle sprain, tinnitus, TBI, scar of the right parietal scalp, and allergic rhinitis combine or interact either with each other or with his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Lastly, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009) (citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)).  However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected disabilities prevent him from obtaining and/or maintaining gainful employment, nor has the Veteran so contended.  In fact, the Veteran reported that he is gainfully employed as a systems analyst.  See August 2010 VA examination report.  

	(CONTINUED ON NEXT PAGE)





ORDER

Entitlement to a 10 percent rating, but not higher, for scar on the right parietal scalp, prior to November 30, 2016, is granted, subject to regulations applicable to the payment of monetary benefits. 

Entitlement to a rating in excess of 10 percent for scar on the right parietal scalp, from November 30, 2016, is denied.  



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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