On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for multiple sclerosis (MS)/subcortical white matter changes.
2. Entitlement to an initial compensable disability
evaluation for bilateral hearing loss.
3. Entitlement to an initial evaluation in excess of 10
percent for scar, status post basal cell carcinoma removal
left ear.
4. Entitlement to an evaluation in excess of 10 percent for
scar status post basal cell carcinoma removal forehead, prior
to April 4, 2008.
5. Entitlement to an increased evaluation for scar status
post basal cell carcinoma removal forehead, currently
evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The Veteran had active service from March 1993 to September
1993 and from November 2001 to June 2002. He also had
numerous years of service in the Naval Reserve.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2003 rating determination of
the Department of Veterans Affairs (VA) Regional Office (RO)
located in Huntington, West Virginia. In the April 2003
rating determination, the RO denied service connection for
subcortical white matter changes. The RO also granted
service connection for bilateral hearing loss and assigned a
noncompensable disability evaluation. The RO further granted
service connection for basal cell carcinoma of the forehead
and face and assigned a noncompensable disability evaluation.
In a September 2008 rating determination, the Roanoke,
Virginia, RO, which assumed jurisdiction of the matter,
assigned a separate 10 percent evaluation for scar, status
post basal cell carcinoma removal of the left ear, effective
June 29, 2002, and assigned a separate evaluation for scar,
status post basal cell carcinoma removal of the forehead,
with a 10 percent disability evaluation effective June 29,
2002, and a 30 percent evaluation effective April 4, 2008.
As a result of the RO's action, the Board has listed the
issues as such on the title page of this decision.
FINDINGS OF FACT
1. The Veteran's MS was incurred in service.
2. The Veteran's hearing loss has not been manifested by
more than level II hearing impairment in the right or left
ear at anytime throughout the course of the appeal.
3. As it relates to the Veteran's status post basal cell
carcinoma removal left ear there has been no demonstration of
a severe scar producing a marked and unsightly deformity or a
scar that is completely or exceptionally repugnant; visible
or palpable tissue loss and either gross distortion or
asymmetry has also not been shown; there has also been no
evidence of pain or instability or any associated muscle or
nerve injury.
4. As it relates to the scar status post basal cell
carcinoma removal forehead, prior to April 4, 2008, the
Veteran was not shown to have a severe scar producing a
marked and unsightly deformity or a scar that was completely
or exceptionally repugnant; there was also no visible or
palpable tissue loss or either gross distortion or asymmetry
of one feature, with no evidence of two or three
characteristics of disfigurement listed in Note 1 for the
rating criteria in effect from August 2002 to October 2008.
5. As it relates to the scar status post basal cell
carcinoma removal forehead, subsequent to April 4, 2008, the
scar has not been described as completely or exceptionally
repugnant with demonstration of deformity of one side of face
or marked or repugnant bilateral disfigurement; there has
also been no demonstration of visible or palpable tissue loss
with gross distortion or asymmetry of two features or paired
sets of features, along with no evidence of four or five of
the characteristics of disfigurement listed in Note 1 for the
rating criteria in effect from August 2002 to October 2008;
there has also been no evidence of pain or instability or any
associated muscle or nerve injury.
CONCLUSIONS OF LAW
1. The criteria for service connection for MS have been met.
38 U.S.C.A. งง 1110, 1112, 1113 (West 2002 & Supp. 2009);
38 C.F.R. งง 3.102, 3.303, 3.307, 3.309 (2008).
2. The criteria for a compensable rating for bilateral
hearing loss disability have not been met at any time.
38 U.S.C.A. ง 1155 (West 2002); 38 C.F.R งง 3.321(b)(1),
4.85, 4.86, Diagnostic Code 6100 (2008).
3. The criteria for an evaluation in excess of 10 percent
for scar, status post basal cell carcinoma removal left ear
have not been met at any time. 38 U.S.C.A. ง 1155; 38 C.F.R
งง 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code
7800 (2002 & 2008); 73 Fed. Reg. 54,708 (Sept. 23, 2008).
4. The criteria for an evaluation in excess of 10 percent
for scar status post basal cell carcinoma removal forehead,
prior to April 4, 2008, have not been met. 38 U.S.C.A.
ง 1155; 38 C.F.R งง 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118,
Diagnostic Code 7800 (2002 & 2008).
5. The criteria for an evaluation in excess of 30 percent
for scar status post basal cell carcinoma removal forehead
from April 4, 2008, have not been met. 38 U.S.C.A. ง 1155;
38 C.F.R งง 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.118,
Diagnostic Code 7800 (2002 & 2008); 73 Fed. Reg. 54,708
(Sept. 23, 2008).
REASONS AND BASES FOR FINDING AND CONCLUSIONService Connection
Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service. 38 U.S.C.A. ง 1110; 38 C.F.R. ง 3.303.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
Under 38 C.F.R. ง 3.303(b), an alternative method of
establishing the second and third Shedden/Caluza element is
through a demonstration of continuity of symptomatology.
Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v.
Gober, 10 Vet. App. 488, 494- 97 (1997); see also Clyburn v.
West, 12 Vet. App. 296, 302 (1999). Continuity of
symptomatology may be established if a claimant can
demonstrate (1) that a condition was "noted" during service;
(2) evidence of post-service continuity of the same
symptomatology; and (3) medical or, in certain circumstances,
lay evidence of a nexus between the present disability and
the post-service symptomatology. Savage, 10 Vet. App. at
495-96; see Hickson v. West, 12 Vet. App. 247, 253 (1999)
(lay evidence of in-service incurrence sufficient in some
circumstances for purposes of establishing service
connection); 38 C.F.R. ง 3.303(b).
Lay persons are not competent to opine as to medical etiology
or render medical opinions. Barr v. Nicholson; see Grover v.
West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). Lay testimony is competent,
however, to establish the presence of observable
symptomatology and "may provide sufficient support for a
claim of service connection." Layno v. Brown, 6 Vet. App.
465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398,
405 (1995) (lay person competent to testify to pain and
visible flatness of his feet); Espiritu, 2 Vet. App. at 494-
95 (lay person may provide eyewitness account of medical
symptoms).
The Board may not reject the credibility of the veteran's lay
testimony simply because it is not corroborated by
contemporaneous medical records. Buchanan v. Nicholson, 451
F.3d 1331, 1336 (Fed. Cir. 2006).
"Symptoms, not treatment, are the essence of any evidence of
continuity of symptomatology." Savage, 10 Vet. App. at 496
(citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once
evidence is determined to be competent, the Board must
determine whether such evidence is also credible. See Layno,
supra (distinguishing between competency ("a legal concept
determining whether testimony may be heard and considered")
and credibility ("a factual determination going to the
probative value of the evidence to be made after the evidence
has been admitted").
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. ง 3.303(d).
MS will be presumed to have been incurred in service if it
becomes manifest to a degree of ten percent or more within
seven one year of the veteran's separation from service.
38 U.S.C.A. งง 1101, 1112, 1113, 1131, 1137; 38 C.F.R.
งง 3.307, 3.309.
It is the defined and consistently applied policy of VA to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. 38 C.F.R. ง 3.102.
Dorland's Medical Dictionary defines MS as a chronic
neurologic disease in which there are patches of
demyelination scattered throughout the white matter of the
central nervous system, sometimes extending into the gray
matter, with symptoms including weakness, incoordination,
paresthesias, speech disturbances, and visual disturbances,
most commonly double vision. The course of the disease is
usually prolonged, with remissions and relapses over many
years. See Dorland's Illustrated Medical Dictionary 973
(30th ed. 2003).
A review of the Veteran's service treatment records reveals
that a March 2002 MRI of the brain showed numerous foci of
increased T2 signal in the deep and subcortical white matter
of both cerebral hemispheres. There was no active breakdown
of the blood-brain barrier. Differential consideration was
noted to include idiopathic demyelination that may be
associated with MS, ischemia demyelination, neurosarcoid,
Lyme disease, or vasculitis.
A June 2004 MRI of the brain resulted in findings of
multicircle areas of white matter increased signal density,
unchanged since prior study. These findings were noted to be
consistent with MS.
In a June 2004 report, the Veteran's private physician, H.
Shah, M.D., diagnosed the Veteran as having MS. He noted
that the Veteran did not have any clinical symptoms or
relapses.
At the time of an August 2004 VA examination, the Veteran
reported the results of the March 2002 MRI. Following
examination, the examiner rendered a diagnosis of MS with
residual problems of insomnia, decreased short-term memory,
intermittent right foot drop, and fatigue. The Veteran was
noted to not be receiving treatment for MS and to be followed
at VA neurology services.
A May 2005 MRI of the brain revealed supratentorial white
matter disease burden which was stable when compared to prior
examination with no diffusion or enhancing abnormalities.
The findings were noted to be compatible with MS in the
appropriate clinical context.
In an October 2006 report, the veteran's private physician,
G. Snider, M.D., indicated that a diagnosis of ? MS was
warranted.
A November 2006 MRI of the brain revealed moderate vessel
disease of the deep white matter, nonspecific but not
exclusive of MS.
In an October 2007 report, C. Bash, M.D., indicated he had
reviewed the Veteran's service treatment records, post-
service medical records, imaging reports and scans, patient
history and physicals, other medical opinions, and medical
literature.
Dr. Bash opined that the Veteran had MS and that it began
during the period of active service from November 2001 to
June 2002 for the following reasons: He entered duty fit for
service; he had unilateral hearing loss, which was consistent
with early symptoms of MS; the Veteran's chronic symptoms had
been well documented by the Veteran's and his spouse's
subjective lay statements; he walked with a slight limp; and
wore out his right shoe sole prematurely.
Dr. Bash noted that the Veteran had an MRI imaging scan done
in March 2002 which showed over 135 T2 lesions, all of which
were consistent with MS. He further observed that the 2006
MRI scan raw images showed many new interval additional T2
lesions as compared to the 2002 scan. He also indicated that
the Veteran's sensory loss and leg weakness after exercise
was consistent with MS.
For a veteran to prevail in his claim it must only be
demonstrated that there is an approximate balance of positive
and negative evidence. In other words, the preponderance of
the evidence must be against the claim for benefits to be
denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990).
While the evidence does not overwhelmingly support the grant
of service connection for MS, it cannot be stated that the
preponderance of the evidence is against the claim.
Although there have been a number of diagnoses of ?MS or
cannot rule out MS, the Veteran was noted to have numerous
foci of increased T2 signal in the deep and subcortical white
matter of both cerebral hemispheres which could be associated
with MS during service. There have also been numerous MRIs
of the brain performed subsequent to service which have
yielded findings consistent with MS. The Veteran has also
been diagnosed as having MS by at least two private
physicians and a VA physician. In his October 2007 report,
Dr. Bash indicated that he had reviewed numerous medical
records prior to reaching the conclusion that the Veteran
currently had MS which began during his active period of
service in 2001-2002. Such review included the Veteran's
service treatment records and numerous MRI scans of the
brain.
The evidence as to whether the Veteran currently has MS
related to his period of active service in 2001-2002 is at
least in equipoise. As such, reasonable doubt must be
resolved in favor of the Veteran. Therefore, service
connection is warranted for MS. 38 U.S.C.A. ง 5107(b).
Evaluations
Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. ง 1155;
38 C.F.R. Part 4.
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
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. ง 4.7.
In view of the number of atypical instances it is not
expected, especially with the more fully described grades of
disabilities, that all cases will show all the findings
specified. Findings sufficiently characteristic to identify
the disease and the disability therefrom, and above all,
coordination of rating with impairment of function will,
however, be expected in all instances. 38 C.F.R. ง 4.21.
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).
Where, as in the instant case, the appeals arise from the
original assignment of a disability evaluation following an
award of service connection, the severity of the disability
at issue is to be considered during the entire period from
the initial assignment of the disability rating to the
present time. See Fenderson v. West, 12 Vet. App. 119
(1999).
Hearing Loss
The Ratings Schedule provides a table for ratings purposes
(Table VI) to determine a Roman numeral designation (I
through XI) for hearing impairment, established by a state-
licensed audiologist including a controlled speech
discrimination test (Maryland CNC), and based upon a
combination of the percent of speech discrimination and the
puretone threshold average which is the sum of the puretone
thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by
four. See 38 C.F.R. ง 4.85.
Table VII is used to determine the percentage evaluation by
combining the Roman numeral designations for hearing
impairment of each ear. The horizontal row represents the ear
having the poorer hearing and the vertical column represents
the ear having the better hearing. Id.
When the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. 38 C.F.R. ง 4.86(a).
When the puretone threshold is 30 decibels or less at 1000
Hertz, and 70 decibels or more at 2000 Hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher. 38 C.F.R. ง 4.86(b).
At the time of an August 2004 VA examination, the Veteran
reported that he had difficulty hearing in a crowd and
sometimes with conversation. This condition had not resulted
in any lost time from work.
Pure tone thresholds, in decibels, were: 10, 5, 25, and 60
decibels in the right ear and 20, 30, 55, and 60 in the left
ear at 1000, 2000, 3000 and 4000 Hertz. Speech audiometry
revealed speech recognition ability of 100 percent in the
right ear and of 92 percent in the left ear. A diagnosis of
bilateral hearing loss was rendered.
At the time of an April 2008 VA examination, the Veteran
reported having difficulty hearing and understanding
conversation when there was background noise. Hearing people
at a distance was also difficult. The Veteran noted that he
had to turn up the volume on the television.
Pure tone thresholds, in decibels, were: 15, 10, 25, and 65
decibels in the right ear and 25, 40, 60, and 65 in the left
ear at 1000, 2000, 3000 and 4000 Hertz. Speech audiometry
revealed speech recognition ability of 88 percent in the
right ear and of 84 percent in the left ear. A diagnosis of
bilateral high frequency sensorineural hearing loss, left
worse than right, was rendered.
To evaluate the degree of disability from defective hearing,
the rating schedule establishes eleven auditory acuity levels
designated from I for essentially normal acuity, through XI
for profound deafness. 38 C.F.R. ง 4.85, Tables VI, VII.
A noncompensable evaluation is provided where hearing in the
better ear is I and hearing in the poorer ear is I through
IX; where hearing in the better ear is II, and hearing in the
poorer ear is II to IV; or where there is level III hearing
in both ears. 38 C.F.R. ง 4.85, Table VII, Diagnostic Code
6100.
A compensable evaluation of 10 percent is assigned where
hearing in the better ear is I and hearing in the worse ear
is X or XI; where hearing in the better ear is II, and
hearing in the worse ear is V to XI; where hearing in the
better ear is III and hearing in the worse ear is IV to VI;
or where hearing in the better ear is IV and hearing in the
poorer ear is IV or V. Id.
Hearing impairment is level I where speech discrimination
percentage is 92-100 and the puretone threshold average
ranges from 0 to 57. Level II impairment is either when
there is speech discrimination of 92-100 percent and a
puretone threshold average of 58 to 81 or where there is
speech discrimination of 84-90 with a puretone threshold
average of 0 to 57.
Level III hearing impairment requires a puretone threshold
average of 82 to 97 where speech discrimination is 92-100
percent; speech discrimination of 84 to 90 percent with a
puretone threshold average of 58 to 81 or speech
discrimination of 76 to 82 percent and a puretone threshold
average of 0 to 49. Level IV hearing impairment requires a
puretone threshold average of 98+ where speech discrimination
is 92-100 percent; speech discrimination of 84 to 90 percent
with a puretone threshold average of 82 to 98+, speech
discrimination of 76 to 82 percent and a puretone threshold
average of 50 to 73; and speech discrimination of 68 to 74
percent and a puretone threshold average of 0 to 49.
38 C.F.R. ง 4.85, Table VI.
Pertinent case law provides that the assignment of disability
ratings for hearing impairment are to be derived by the
mechanical application of the Ratings Schedule to the numeric
designations assigned after audiometry evaluations are
rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
At the August 2004 VA audiological examination, the Veteran
had an average puretone hearing loss in the right ear of 25
decibels and an average puretone hearing loss in the left ear
of 41 decibels, with 100 percent speech discrimination in the
right ear and 92 percent in the left ear, which translates to
level I hearing in the right ear and level I hearing in the
left ear. 38 C.F.R. ง 4.85, Table VI. Applying Table VII,
Diagnostic Code 6100, this equates to noncompensable hearing
loss.
At the April 2008 VA audiological examination, the Veteran
had an average puretone hearing loss in the right ear of 29
decibels and an average puretone hearing loss in the left ear
of 48 decibels, with 88 percent speech discrimination in the
right ear and 84 percent in the left ear, which translates to
level II hearing in the right ear and level II hearing in the
left ear. 38 C.F.R. ง 4.85, Table VI. Applying Table VII,
Diagnostic Code 6100, this equates to noncompensable hearing
loss.
The findings do not meet the criteria for evaluation as an
exceptional pattern of hearing loss.
As the criteria for a higher evaluation of 10 percent have
not been met (level I hearing in the better ear with level X
or XI hearing in the worse ear; level II hearing in the
better ear with level V to XI hearing in the worse ear; level
III hearing in the better ear and level IV to VI hearing in
the worse ear; or level IV hearing in the better ear with
Level IV or V hearing in the poorer ear), the appeal must be
denied.
Table VIa is not for application because the Veteran's
puretone threshold was not 55 decibels or more at each of the
four specified frequencies (1000, 2000, 3000, and 4000
Hertz), and because his puretone threshold was not 30 or
lower at 1000 Hertz and 70 or more at 2000 Hertz. See
38 C.F.R. งง 4.85(c), 4.86(a).
The preponderance of the evidence is against the claim and
there is no doubt to be resolved. 38 U.S.C.A. ง 5107(b);
38 C.F.R. งง 4.7, 4.21 (2008).
Residuals of Removal of Basal Cell
Carcinomas of the Left Ear and Forehead
Prior to August 30, 2002, a 10 percent evaluation was
warranted for a moderately disfiguring scar of the head,
face, or neck. A 30 percent evaluation required that such a
scar be severe, especially if producing a marked and
unsightly deformity of the eyelids, lips, or auricles. A 50
percent evaluation required that such a scar be completely or
exceptionally repugnant, with deformity of one side of face
or marked or repugnant bilateral disfigurement. 38 C.F.R.
ง 4.118, Diagnostic Code 7800. Under the former criteria,
when in addition to tissue loss and cicatrization there was
marked discoloration, color contrast, or the like, the 50
percent rating may be increased to 80 percent, the 30 percent
rating to 50 percent, and the 10 percent to 30 percent. The
most repugnant, disfiguring condition, including scars and
diseases of the skin, may be submitted for central office
rating, with several unretouched photographs. 38 C.F.R.
ง 4.118, Diagnostic Code 7800, Note (2002).
From August 30, 2002, for scars that are located on the head,
face, or neck, under the revised criteria, a 10 percent
rating is warranted with one characteristic of disfigurement;
a 30 percent rating is assigned when there is visible or
palpable tissue loss and either gross distortion or asymmetry
of one feature or paired set of features, or; with two or
three characteristics of disfigurement; a 50 percent rating
is assigned for visible or palpable tissue loss and either
gross distortion or asymmetry of two features or paired sets
of features, or; with four or five characteristics of
disfigurement; and, an 80 percent rating is provided when
there is visible or palpable tissue loss and either gross
distortion or asymmetry of three or more features or paired
sets of features, or; with six or more characteristics of
disfigurement. 38 C.F.R. ง 4.118, Diagnostic Code 7800
(2008).
Under note (1), the 8 characteristics of disfigurement for
purposes of evaluation under Section 4.118, are: a scar 5 or
more inches (13 or more cm.) in length; scar at least one-
quarter inch (0.6 cm.) wide at widest part; surface contour
of scar elevated or depressed on palpation; scar adherent to
underlying tissue; skin hypo- or hyper- pigmented in an area
exceeding six square inches (39-sq. cm.); skin texture
abnormal (irregular, atrophic, shiny, scaly, etc.) in an area
exceeding six square inches (39 sq. cm.); underlying soft
tissue missing in an area exceeding six square inches (39-sq.
cm.); and skin indurated and inflexible in an area exceeding
six square inches (39- sq. cm.).
Pursuant to Note 2, tissue loss of the auricle is to be rated
under Diagnostic Code 6207 (loss of auricle). Pursuant to
Note 3, the adjudicator is to take into consideration
unretouched color photographs when evaluating under these
criteria. 38 C.F.R. ง 4.118, Diagnostic Code 7800, Notes 1-3
(2008).
Effective October 23, 2008, the rating code was again
changed. DC 7800 essentially remained unchanged with the
addition of Note (4) and Note (5). Note 4 stated separately
evaluate disabling effects other than disfigurement that are
associated with individual scar(s) of the head, face, or
neck, such as pain, instability, and residuals of associated
muscle or nerve injury, under the appropriate diagnostic
codes and apply ง 4.25 to combine the evaluation(s) with the
evaluation assigned under this diagnostic code. Note 5
states the characteristics of disfigurement may be caused by
one scar or multiple scars , the characteristics required to
assign a particular evaluation need not be caused by a single
scar in order to assign that evaluation.
At the time of an August 2004 VA examination, the Veteran was
having no functional impairment or disability from removal of
the basal cell carcinoma of the face and ear. There was no
deformity and no other issues or problems. This condition
did not cause him any problem other than some minor scar
itching.
Examination of the skin showed a 2 cm horizontal, barely
visible scar on the left forehead. He also had a 1 cm scar
on the left pinna of the ear. These scars were caused by
removal of basal cell carcinomas. There was no underlying
tissue loss, disfigurement, keloid formation, or other scar
abnormalities. The cancer on the nose and bilateral zygomas
was frozen off and there was no visible scar on the face.
At the time of an April 2008 VA examination, the Veteran was
noted to have had basal cell carcinomas removed from his face
in March 2002. Due to his skin condition, the Veteran had
ulcer formation, itching, shedding, and crusting. He had no
exudation. The skin disease involved areas that were exposed
to the sun, including the head and face. It did not include
the neck or hands. The Veteran reported that the location
was on his left ear, right forehead, and left side of face by
the sideburns. The basal cell carcinoma was removed with
Nitrogen about every six months from the face and ear.
Physical examination revealed a level scar present at the
forehead measuring about 16 cm by 2 cm. The scar had
disfigurement, tissue loss of less than six square inches and
abnormal texture of less than six square inches. There was
no tenderness, ulceration, adherence, instability,
inflammation, edema, keloid formation, hypopigmentation or
hyperpigmentation. There were no signs of skin disease
present. A diagnosis of basal cell carcinoma scarring,
status post removal forehead and face, was rendered.
As to the issue of an evaluation in excess of 10 percent for
scar, status post basal cell carcinoma removal left ear,
there has been no demonstration of a severe scar producing a
marked and unsightly deformity or a scar that is completely
or exceptionally repugnant. As such, an evaluation in excess
of 10 percent would not be warranted under the rating
criteria in effect prior to August 2002. An increased
evaluation would also not be warranted for the criteria in
effect from August 2002 to October 2008 as the left ear scar
has not been shown to have visible or palpable tissue loss
and either gross distortion or asymmetry of one feature or
two or three characteristics of disfigurement listed in Note
1.
An increased evaluation would also not be warranted under the
criteria which became effective on October 23, 2008, as in
addition to not meeting the above listed criteria, the
Veteran's left ear scar has not been shown to cause pain or
instability, or to have any associated muscle or nerve
injury.
As to the issue of an evaluation in excess of 10 percent for
status post basal cell carcinoma removal forehead, prior to
April 4, 2008, the Board notes that prior to this time, the
Veteran was not shown to have a severe scar producing a
marked and unsightly deformity or a scar that was completely
or exceptionally repugnant. As such, an evaluation in excess
of 10 percent would not be warranted under the rating
criteria in effect prior to August 2002. An increased
evaluation would also not be warranted for the criteria in
effect from August 2002 to October 2008 as the status post
basal cell carcinoma removal forehead was not shown to have
visible or palpable tissue loss and either gross distortion
or asymmetry of one feature or two or three characteristics
of disfigurement listed in Note 1. The criteria for an
increased evaluation were not objectively met prior to the
findings made at the time of the April 4, 2008, examination.
As it relates to an evaluation in excess of 30 percent from
April 4, 2008, a 50 percent evaluation would not be warranted
under the old rating criteria as the scar has not been
described as completely or exceptionally repugnant with
demonstration of deformity of one side of face or marked or
repugnant bilateral disfigurement. A 50 percent evaluation
would also not be warranted under the rating criteria in
effect from August 2002 to October 2008, as there was no
visible or palpable tissue loss with gross distortion or
asymmetry of two features or paired sets of features, or four
or five the characteristics of disfigurement listed in Note
1.
As to the criteria in effect from October 2008, in addition
to not meeting the above listed criteria, the Veteran's scar
status post basal cell carcinoma removal from the forehead
has not been shown to cause pain or instability, or to have
any associated muscle or nerve injury. As such, an
evaluation in excess of 30 percent has not been met or
approximated.
Extraschedular Consideration
In exceptional cases an extraschedular rating may be
provided. 38 C.F.R. ง 3.321. The threshold factor for
extraschedular consideration is a finding that the evidence
before VA presents such an exceptional disability picture
that the available schedular evaluations for that service-
connected disability are inadequate. Therefore, initially,
there must be a comparison between the level of severity and
symptomatology of the claimant's service-connected disability
with the established criteria found in the rating schedule
for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria
reasonably describe the claimant's disability level and
symptomatology, then the claimant's disability picture is
contemplated by the rating schedule, the assigned schedular
evaluation is, therefore, adequate, and no referral is
required. In the second step of the inquiry, however, if the
schedular evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the RO or Board must determine whether the
claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
"governing norms." 38 C.F.R. ง 3.321(b)(1). (related factors
include "marked interference with employment" and "frequent
periods of hospitalization"). When the rating schedule is
inadequate to evaluate a claimant's disability picture and
that picture has related factors such as marked interference
with employment or frequent periods of hospitalization, then
the case must be referred to the Under Secretary for Benefits
or the Director of the Compensation and Pension Service for
completion of the third step--a determination of whether, to
accord justice, the claimant's disability picture requires
the assignment of an extraschedular rating. Id.
The Veteran's hearing loss and scar residual manifestations
are contemplated by the rating schedule. No VA examiner has
indicated that the disabilities have cause marked
interference with employment. The disabilities have also not
required any recent periods of hospitalization. No other
exceptional factors have been reported.
The criteria for assignment of an extraschedular rating
pursuant to 38 C.F.R. ง 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337 (1996).
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. งง 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R
งง 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) and that the claimant is expected to provide.
38 U.S.C.A. ง 5103(a); 38 C.F.R. ง 3.159(b)(1).
For claims pending before VA on or after May 30, 2008,
38 C.F.R. ง 3.159 has been amended to eliminate the
requirement that VA request that a claimant submit any
evidence in his or her possession that might substantiate the
claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).
The Court has also held that that the VCAA notice
requirements of 38 U.S.C.A. ง 5103(a) and 38 C.F.R.
ง 3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; 3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In view of the Board's favorable decision on the claim for
service connection for MS, further assistance is not required
to substantiate that claim. The VCAA is not applicable where
further assistance would not aid the appellant in
substantiating his claim. Wensch v. Principi, 15 Vet App 362
(2001); see 38 U.S.C.A. ง 5103A(a)(2) (Secretary not required
to provide assistance "if no reasonable possibility exists
that such assistance would aid in substantiating the claim");
see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004)
(holding that the notice and duty to assist provisions of the
VCAA do not apply to claims that could not be substantiated
through such notice and assistance).
As to the issue of evaluations for basal cell carcinoma scars
and hearing loss, these appeals arise from disagreement with
the initial evaluation following the grant of service
connection. The courts have held that once service
connection is granted the claim is substantiated, additional
VCAA notice is not required; and any defect in the notice is
not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed.
Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
There has been compliance with the assistance requirements of
the VCAA. All available service medical, VA, and private
treatment records have been obtained. No other relevant
records have been identified. The Veteran was afforded
several VA examinations. Based upon the foregoing, no
further action is necessary to assist the veteran in
substantiating the claim.
ORDER
Service connection for MS is granted.
A compensable evaluation for bilateral hearing loss at any
time is denied.
An evaluation in excess of 10 percent for scar, status post
basal cell carcinoma removal left ear, at any time, is
denied.
An evaluation in excess of 10 percent for scar status post
basal cell carcinoma removal forehead, prior to April 4,
2008, is denied.
An evaluation in excess of 30 percent from April 4, 2008, for
scar status post basal cell carcinoma removal forehead, is
denied.
