Citation Nr: 0501806 Decision Date: 01/26/05 Archive Date: 02/07/05 DOCKET NO. 03-12 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a scar, residual of a hysterectomy. 2. Entitlement to a compensable rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Tiedeman INTRODUCTION The veteran served on active duty from February 1996 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. FINDINGS OF FACT 1. The veteran's service-connected scar, residual of a hysterectomy, is manifested by a well-healed incision scar, 16 centimeters by one millimeter, in the mid suprapubic area, that is tender on the right side, but which is not shown to be productive of limitation of motion or function. 2. The veteran's hypertension is manifested by diastolic blood pressure readings predominantly below 100 and systolic pressure readings predominantly below 160. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the scar, residuals of a hysterectomy, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (before and after August 30, 2002). 2. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2004); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326, and Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA. There was a significant change in the law on November 9, 2000, at which time the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. Regulations implementing the VCAA are found at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). VA must notify the veteran of evidence and information necessary to substantiate her claim and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this regard, the veteran was notified of the evidence and information necessary to substantiate her claim in the rating decision dated in January 2001; the supplemental statement of the case dated in September 2003; and the letter dated in June 2003. These documents included a summary of the evidence in the case; citation to pertinent laws and regulations; and a discussion of how they affect the decision. The RO explained why the evidence was insufficient under applicable law and regulations to grant the benefits sought. VCAA notice must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request the claimant to provide any evidence in his or her possession that pertains to the claim. The June 2003 letter specifically invited the veteran to give VA any additional evidence she had regarding the issue on appeal. All the VCAA requires is that the duty to notify be satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, because each of the content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the veteran covering all content requirements is harmless error. In claims for disability compensation the VCAA duty to assist requires VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. A VA medical opinion regarding the nature and severity of the veteran's disorders at issue has been obtained in this case. The Board notes that the available medical evidence is sufficient for an adequate determination. Further, the veteran has not identified any outstanding medical records. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA as to the issue addressed in this decision have been fulfilled. A VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ). The Board finds that any defect with respect to the timing of the VCAA notice requirement in the case was harmless error. While the notice provided to the veteran was not given prior to the first AOJ adjudication of the claims, the notice was provided by the AOJ prior to the transfer and certification of the veteran's case to the Board and notice complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The issues on appeal were re-adjudicated and a supplemental statements of the case was provided to the veteran. The veteran has been provided every opportunity to submit evidence and argument in support of her claims, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial error. See VAOPGCPREC 7-2004 (July 16, 2004). Claims for Higher Initial Ratings. In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can practically be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. In addition, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson, 12 Vet. App. at 126. When 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. § 4.7. I. Scar. Factual Background. At the time of a September 2000 VA examination, it was noted that the veteran had a well-healed incision on her abdomen, which was very tender to palpation around the incision, particularly on the right side. VA outpatient treatment records, dated from September 2001 to June 2003, do not reflect treatment for the scar. At the time of an August 2003 VA examination, the veteran had a 16 centimeter transverse scar in the mid suprapubic area, with a one millimeter width. There was tenderness on deep palpation in the right lateral two inches of the scar, where a dense subcutaneous scar was felt. Otherwise, there was no evidence of abnormality. Analysis. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805. The veteran is entitled to be rated under the Diagnostic Code which allows the highest possible evaluation for the clinical findings shown on objective examination. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA regulations for the evaluation of skin disabilities were revised effective August 30, 2002. See 67 Fed. Reg. 49590- 49599 (July 31, 2002) and corrections 67 Fed. Reg. 58448- 58449 (Sept. 16, 2002). The RO has rated the veteran's hysterectomy incision scar under Diagnostic Code 7804. The Rating Schedule criteria set forth by this code for superficial scars are essentially unchanged by the August 2002 revision. Pursuant to Diagnostic Code 7804 as in effect prior to August 30, 2002, superficial scars which were shown to be tender and painful on objective demonstration warranted a 10 percent rating. Under this code effective August 30, 2002, a superficial scar which is painful on examination warrants a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. The 10 percent evaluation currently assigned for the scar on the veteran's abdomen is the maximum rating available under Diagnostic Code 7804. The Board notes that higher ratings are available for scars under Diagnostic Codes 7800 and 7801. Diagnostic Code 7800, however, is applicable only to scars that disfigure the head, face, or neck. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Diagnostic Code 7801 is applicable to scars, other than the head, face, or neck, that are deep or that cause limited motion. See 38 C.F.R. § 4.118, Diagnostic Code 7801. For other scars the limitation of function of the part affected was to be rated. 38 C.F.R. § 4.118, Diagnostic Code 7805 (effective before and after August 30, 2002). There is no showing that the veteran's scar is deep or causes limited motion or function. Based on the clinical evidence of record, no other diagnostic code is applicable in this case. Accordingly, an increased rating for a scar, residual of a hysterectomy, is not warranted at this time. II. Hypertension. In November 2001, the veteran's blood pressure was recorded as 140/102 and 141/94 on two separate occasions. In December 2001, the veteran's blood pressure was 128/81. In June 2003, VA outpatient records reflect blood pressure readings of 132/87 and 136/97. At the time of the veteran's August 2003 VA examination, it was noted that she had been diagnosed with hypertension in 2001. She was treated with 10 milligrams of Anasol daily, 20 milligrams of Lisinopril daily, and hydrochlorothiazide diuretic daily. She had no symptoms resulting from hypertension. Blood pressure readings were as follows: 135/90, 140/90, and 135/80. Clinical diagnosis was of essential hypertension. Analysis. The disability rating criteria that has been used in this case may be found at 38 C.F.R. Part 4, Diagnostic Code 7101. This code, for hypertensive vascular disease, provides for a 10 percent rating when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. A 20 percent evaluation is warranted for hypertension with diastolic pressure predominantly 110 or more, or; systolic pressure is predominantly 200 or more. If there is hypertension with diastolic pressure predominantly 120 or more, a 40 percent rating is in order. A maximum schedular evaluation of 60 percent is assigned when there is diastolic pressure predominantly 130 or more. See 38 C.F.R. Part 4, Diagnostic Code 7101. Although the veteran is on medication for her hypertension, under the applicable rating criteria, a compensable evaluation requires, at a minimum, that the claimant have diastolic readings of 100 or greater, or systolic readings of 160 or greater, regardless of the need for medication to control the hypertension. Review of the medical evidence shows that the veteran's diastolic blood pressure readings have largely reported as under 100. Her systolic readings have never been reported as 160 or greater. Conclusion. For all the foregoing reasons, there is no basis for staged rating pursuant to Fenderson, and the claim for a higher evaluation must denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim for a higher initial evaluation, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53- 56. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Under Secretary or Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds there is no evidence that the veteran's scar and hypertension have caused such marked interference with employment or necessitated frequent periods of hospitalization for the periods at issue such as would render impractical the application of regular schedular standards at this time. In the absence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash, 8 Vet. App. at 227. ORDER Entitlement to a rating in excess of 10 percent for a scar, residual of a hysterectomy, is denied. Entitlement to a compensable rating for hypertension is denied. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs