Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0921726

Decision Date: 06/10/09 | Archive Date: 06/17/09

DOCKET NO. 04-25 018A

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 CONCLUSION Service 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.




MARY GALLAGHER

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

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