BVA9503519 DOCKET NO. 93-12 632 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased disability rating for scars and residuals of second degree burns on both buttocks and the left thigh, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from July 1973 to August 1975. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to a disability rating greater than 10 percent for scars and residuals of second degree burns on both buttocks and the left thigh. He asserts that this service-connected disability is more severely disabling than currently evaluated. Specifically, at the September 1992 personal hearing before a hearing officer at the RO, the veteran testified that, as a result of the service-connected scars on his buttocks and left thigh, he cannot sit for long periods of time because his scars become irritated and itch, and he does not wear underwear because those garments cause irritation. Hearing transcript at 2, 5. In addition, he testified that hot weather causes him to sweat and that, during rain or humid weather, the skin between his legs and buttocks becomes chapped, and he begins to experience a tingling sensation. Id. at 5, 6. According to his testimony, he uses two ointments on his skin. One medication he uses regularly, and the other he uses when he gets a breakage. He testified that he is easily infected by dust and dirt. Id. at 2, 4. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence justifies a rating of twenty percent for the disability at issue on an extraschedular basis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. The scars and residuals of the second degree burns of both of the veteran's buttocks and left thigh are well-healed. 3. The scars and residuals of the second degree burns of the veteran's buttocks and left thigh because of their location result in an unusual and adverse impact in employment situations. CONCLUSION OF LAW The manifestations of the scars and residuals of second degree burns of both buttocks and the left thigh warrant a 20 percent rating. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.321 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1993). In a March 1976 rating decision, the RO granted service connection for scars and residuals of second degree burns of both buttocks and the left thigh and rated the disability as 10 percent disabling, effective from August 1975. The service medical records show that on April 4, 1975, the veteran sustained first and second degree burns to the posterior thighs and buttocks when he was pushed against a charcoal burner. In an entry dated April 10, 1975, it was stated that he had suffered a wide burn on the buttocks. He reportedly had daily dressing changes but had not had good inspection or evaluation. When seen on April 10th, he could barely walk and could only lie on his stomach. The burn was mostly second degree but was "partly 3º and goes down towards the anus." It was recommended that the veteran be hospitalized for care, comfort, and daily monitoring. Finally, the physician stated that the veteran was in considerable pain. He was admitted that same date, placed on bedrest and antibiotics, and given whirlpool therapy. The wound healed quickly. He was discharged on April 28, 1975 with a diagnosis of second degree burns to the buttocks. VA examination conducted in February 1976 demonstrated a sharply outlined and slightly hyperpigmentated atrophic scar areas measuring 12 X 14 centimeters on the left buttock and extending over the upper portion of the thigh area and measuring 9 X 10 centimeters on the lower right buttock. The examiner concluded that the scars were not adherent and were well-healed. No scars were found on the veteran's legs. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1993) and is designed to compensate a veteran for the average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The Court has recently held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's service-connected scars and residuals of second degree burns of both buttocks and the left thigh. The veteran is rated for this service-connected disability under Diagnostic Code 7802. Scars resulting from second degree burns, which consist of an area or areas approximating one square foot, warrant a 10 percent disability evaluation. This Code does not provide for a rating higher than 10 percent. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.118, Code 7802 (1994). Other provisions of 38 C.F.R. Parts 3 and 4 have also been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Although the diagnostic codes for disabilities of the pelvic girdle and thigh muscles provide for evaluations greater than 10 percent, there is absolutely no medical evidence of, nor has the veteran contended that he experiences, any type of muscle injury as a result of his service-connected scars on his buttocks and left thigh. Moreover, the regulations require that the evaluation of a disability of the musculoskeletal system must take into account the functional loss due to pain of the damaged part of the system. 38 C.F.R. Part 4, § 4.40 (1993). The Board acknowledges the testimony provided by the veteran at the personal hearing. However, the veteran has not, at any time during the present appeal, made specific complaints of pain resulting from his service-connected scars. Moreover, none of the post-service outpatient treatment records or VA examinations provided any support of objective findings of pain. However, taking into account the veteran's testimony with regard to irritation he experiences as a result of his service-connected scars, the Board concludes that the veteran's current 10 percent rating adequately contemplates the irritation that he experiences in his buttocks and left thigh. There is no medical indication that any irritation that the veteran might experience is above the level contemplated by the current evaluation. In fact, at the general medical VA examination conducted in October 1992, the examiner found no evidence of any skin irritation. Consequently, under Diagnostic Code 7802, the veteran is receiving the highest possible schedular evaluation. The veteran could receive a rating greater than the 10 percent schedular evaluation he currently receives for his service-connected scars and residuals of second degree burns of both buttocks and the left thigh on an extraschedular rating. To be entitled to an extraschedular evaluation, the evidence must present a case which represents an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. 38 C.F.R. § 3.321(b) (1994). According to recent medical records, the veteran was hospitalized for approximately one month from August to September 1991 for a disorder unrelated to his service-connected scars. During this hospitalization, he received a physical examination at which time the examiner noted the veteran's physical condition was essentially within normal limits with the exception of shielded burns of both lower legs. The veteran was found to be competent and employable. A VA examination conducted in October 1991 demonstrated hyperpigmented areas on both buttocks and upper posterior thighs approximately seven inches by ten inches. The examiner noted that these scars resulted from the veteran's 1975 burn. Importantly, the examiner also noted that the veteran was burned a second time in 1987. As a result of the second burn, the veteran now has, according to this examination report, extensive, severe scarring on both legs, especially from the mid-lower calves to the mid-upper thighs and especially around the left knee. The examiner also noted that the veteran underwent skin grafts for the second burns. The diagnosis with regard to the earlier, 1975 burns was scars and residuals of second degree burns of both buttocks and the upper posterior thighs. The veteran has submitted numerous records of recent outpatient treatment he has received. However, none of these records describes significant treatment for his service-connected scars. In January 1992, the veteran was hospitalized for a condition unrelated to his service-connected disability. At the time of this hospitalized, the veteran received a physical examination. The examiner noted the residuals of burns to the veteran's legs and the multiple areas of skin grafting which were fairly well-healed over both lower extremities. No clubbing, other lesions, or tracks were found. The veteran refused a rectal examination. Because the veteran was discharged irregularly due to unauthorized absence, his employability could not be determined at that time. Subsequently, in October 1992, the veteran underwent a VA general medical examination. At that time, the veteran reported to the examiner that his service-connected scars resulted from in-service burns of the gluteus area and the back of the leg and that these burns required no surgery or surgical graft. The veteran also reported the post-service burns he sustained to his lower extremities. The examiner discussed that, with regard to the service-connected scars, the veteran's skin appeared to be normal perianally and perirectally and throughout the gluteus and the posterior aspect of the leg. The examiner found no evidence of any skin irritation. At the specialized VA examination for scars, which was conducted on the same day as the general medical examination, the examiner noted that the service-connected burns were mostly in the gluteus area and also the back of the leg up to about the upper third and appeared to be normal, uninvolved with major burns, and well-healed with well-intact skin. The examiner found no evidence of distortion of the gluteus, perianal, or posterior leg area. The examiner expressed his opinion that the service-connected burns were not of the third degree, but rather were probably of the first or second degree. The examiner noted that the service-connected burns were healed without any surgical intervention or graft. The diagnosis of status post service-connected burn, well-healed, was made. The examiner stated that, although it was difficult to evaluate the extent of scarring disability due to the overlapping of the service-connected and non-service-connected burns, it seemed to him that the most troubling and disabling scars are related to the non-service-connected burns. As these medical records demonstrate, the veteran's skin in the area of the service-connected burns is intact and well-healed. There is no evidence whatsoever of any hospitalization for this service-connected disability. The Board notes that, although the veteran testified at the personal hearing that his medical problems resulted from his service-connected scars, the VA examination indicated otherwise. At that examination, the examiner observed that some of the grafted areas (which represented the non-service-connected burns) appeared to dry and to crack easily. Moreover, the veteran himself admitted to the examiner that he uses some kind of lotion to maintain the elasticity of this skin. The veteran had testified at the personal hearing that the ointment he used was for his service-connected, and not the non-service-connected scars. Hearing transcript at 2, 4. The Board has also considered the applicability of Code 7201. The weight of the evidence, however, both during and after service, strongly indicates that the service-connected burns were not more than second degree. The report of April 10, 1975, relating the presence of some third degree involvement, has not been repeated since that time. The post-service clinical evaluations of the service-connected burns have not suggested any third degree residuals, especially in an area exceeding 12 square inches. The provisions of 38 C.F.R. § 3.321 (1994), however, remain to be considered. The site of the scars involve the buttocks and the upper left thigh, a part of the body which is subject to persistent pressure and stress throughout the day in almost any form of employment. The burn scars cover a substantial area. The veteran has testified that sitting causes irritation and itching. If the scars, for instance, were on the abdomen or the chest, it is unlikely that they would be subject to the same amount of daily stress, especially in most employment environments, and the rating schedule would seem to be adequate to reflect the impairment. The involvement of the buttocks does create obvious obstacles to employment, a situation the rating schedule does not address. An increased rating pursuant to this regulatory authority is warranted. ORDER A rating of 20 percent for scars and residuals of second degree burns of both buttocks and the left thigh is granted, subject to controlling regulations affecting the payment of monetary awards. ____________________________ JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.