Scars Rating Cue Or Request For Review

[georgiapapa]

I was in a jeep accident in Vietnam in 1968 which resulted in the transverse fracture through the anatomical neck of the humerous of my left shoulder. I underwent surgery in a field hospital in Vietnam which left a large ugly ragged deep tissue scar on my left shoulder. Shortly after my discharge from the Marine Corps in 1970, I filed a claim for disability with the VA. The VA service connected my shoulder injury at 0% and I appealed their decision and provided the VA with a photograph of the scar on my shoulder. After I appealed, the VA awarded me 10% disability for residuals of fracture of left shoulder. I appealed the 10% award and underwent an exam by the VA in 1971. During the 1971 VA exam, the examining doctor stated the following in his report:

"On examination, there was a 10 and 3/4 inch slighly ragged nonlineal scar running down the anterior left shoulder and into the anterior axilla. The scar was old and well healed and not symptomatic. The veteran could go through all motions with the left shoulder, but it seemed to be somewhat stiff. He complained of pain and tenderness just posterior to the acromioclavicular joint on the left shoulder. X-ray films showed possible minimal cortical irregularity involving the metaphysial region of the left humerus, more apparent in external rotation, compatible with old, healed, remote fracture. The final diagnosis was old fracture, left upper humerus, moderate."

My scar runs from under my arm pit and goes completely over the top of my shoulder. Looking at my shoulder from the front it appears that my arm had been ripped off at the shoulder and sewed back on. The scar's width varies in width from about 3/4 inch to over an inch. Because of my scar's ugly appearance I do not go out in public without a shirt on. Even when I go swimming I always wear a t-shirt to cover the scar. I would estimate my scar covers between eight to ten square inches.

In the Statement of the Case I received from the VA in 1971, it made the following reference concerning their denial of a rating for my scar: "For a compensable rating to he assigned for scars of the shoulder, there must be poor nourishment with repeated ulceration, tenderness and pain on objective demonstration, or limitation of function of the part affected. (Codes 7803, 7804, 7805)." NOTE: Based on this statement by the VA I felt further appeal for a rating for the scar would be futile.

In the Decision paragraph of my final letter from the VA it states the following: "Entitlement to an increased rating for left shoulder disability or to an earlier effective date of the compensable rating for left shoulder disability is not established. Accordingly, thte appeal is denied."

In doing some recent research about the scars rating criteria used by the VA, I discovered the VA has changed their scars rating criteria one or more times since my claim in 1970. The most recent rating criteria I could find (Diagnostic code 7801) Burn scar(s) or scar(s) due to other causes, not of the head, face or neck, that are deep and nonlinear and cover at least 6 square inches but less than 12 square inches is entitled to a 10% rating for the scar. Based on this recent criteria, it appears that I would be rated at 10% if rated by the VA under the current criteria. NOTE: Nothing in the VA decision letter from 1971 referenced Diagnostic Code 7801. It appears the VA indicated in their decision letter that my shoulder scar did not meet any VA criteria for them to even consider a compensable rating for my shoulder.

QUESTION: Does anyone know if Diagnostic Code 7801 contained the same criteria in 1970 as it does today?

QUESTION: If Diagnostic Code 7801 did contain the same criteria in 1970, would I have a basis for a CUE since it appears Diagnostic Code 7801 was not considered in my decision?

QUESTION: If the VA used the correct Diagnostic codes and rated my scar appropriately in 1971, would I be successful in asking the VA for a review and reconsideration to now allow a compensable rating for my scar under the current Diagnostic Code 7801 criteria?

QUESTION: Should the VA have service connected my shoulder scar and at least awarded a 0% rating so the rating could be increased if the criteria changed in the future?

I really feel like I was low balled by the VA when they made the decision about my shoulder but that is water over the dam. I have had other problems with my left shoulder over the years (bursitis, arthritis, torn rotator cuff, etc.) and if I am entitled to any additional compensation for my shoulder I defintely want to file a claim for the additional compensation. Any input or suggestions hadit members can provide would be appreciated.

Georgia Papa

[caubulldog]

I don't see any Cue basis myself but if your injuries have gotten worse, I would file for a increase on it and include the scars so they could be considered under the present rating schedule.

[john999]

When you file a CUE the VA uses the old regulations at the time of the decision. Whatever existed as far as the law for rating scars in 1971 is what would be considered. If the VA did not apply the 1971 regulation correctly you may have a chance. It is a long and hard road. Try and get an increase now and then go for the CUE.

[Philip Rogers]

Personnally, I would file a CUE on the scar and any muscle groups that may have been affected/effected by the injury and subsequent surgery. Very often, back then, they failed to rate claims properly. Venturing a guess I'd say they screwed up and you could get a nice little retro check. jmo

pr

[john999]

I think I agree with Phil on this and while you are at it file for an increase now and file the CUE for what they missed or incorrectly rated back in the day. They are separate claims.

[Berta]

I agree with John and Philip.

These are two convoluted decisions by the BVA but reveal 1971 rating codes and info under 1971 schedule of ratings for scars:

http://www.va.gov/vetapp03/Files/0306956.txt

Under Issues

2. Whether the May 1971 rating decision which did not

establish a separate 10 percent rating for scars may be

reversed or amended on the basis of clear and unmistakable

error.

Under Conclusions of Law:

3. An effective date earlier than November 19, 1999, is not

warranted for a separate 10 percent schedular rating for left

hand and wrist scars. 38 U.S.C.A. §§ 1155, 5110 (West 2002);

38 C.F.R. § 3.400 (2002).

(it seems they are saying the scars were not compensable in 1971 but were in 1999 ???)

http://www.va.gov/vetapp03/Files/0307769.txt

Under Issue #2

“Whether there was CUE in a November 1971 rating decision

in that it failed to assign compensable ratings for residuals

of chin, left thigh, right thigh, left arm, and left leg sws.”

(SWS schrapnel wound scars)

Under Finding out fact:

2. “Evidence of record in November 1871 undebatably showed

moderate Muscle Group (MG) VII injury; the remaining sw scars

were not shown to be tender, painful, disfiguring, or

productive of any functional impairment.”

(obviously the 1871 date is a typo=-they mean 1971

"Tender,painful, disfiguring or productive of any functional impairment" seems to be the criteria they used here)

I think there is more to search for to help if you consider a CUE and best to try to get the scar service connected first.

[john999]

Just on a common sense basis I can't believe you could not get SC'ed for scars in 1971. What about severe burn scars?

What about a scar to your face that disfigures you? I think you can get those scars SC'ed especially if they are painful or limit ROM. Somehow the VA can misinterpret their own regs.