Citation Nr: 0818776 Decision Date: 06/06/08 Archive Date: 06/18/08 DOCKET NO. 06-34 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable disability rating for the residual scarring of an operation to remove a ganglion cyst from the left wrist. ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran had active service from June 1999 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT The veteran's residual scarring of the left wrist is manifested by a 2 inch by 1 inch scar that is not tender upon examination, is not unstable, and does not limit motion or function of the veteran's left wrist. CONCLUSION OF LAW The criteria for a compensable disability rating for the residuals of the scarring of the veteran's left wrist have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107, 5107A (West 2002 & Supp. 2007); 38 C.F.R. §§ 7801-05; 7819 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for an initial compensable disability rating for her service-connected residual scarring arises from her disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. See Goodwin v. Peake, No. 05-0876 (U.S. Vet. App. May 19, 2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's VA treatment records, and in August 2005, she was afforded a formal VA examination. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Increased Rating Claim In the currently appealed October 2005 decision, the RO granted the veteran's claim of entitlement to service connection for residuals of the excision of a ganglion cyst of the left wrist (which was done in service), and assigned a noncompensable evaluated for the scar residual. The veteran argues that the disability is more disabling than evaluated. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which a veteran's service-connected disabilities adversely affect his ability to function under the ordinary conditions of daily life, and the assigned ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Diagnostic Code 7819 provides that benign skin neoplasms are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. 38 C.F.R. § 4.118. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Facts and Analysis Application of Diagnostic Code 7801 results in a noncompensable disability rating for the veteran. During the August 2005 VA examination, the examiner noted that there was no pain on range of motion for the veteran's left wrist, and it was not suggested motion was limited, by scarring or otherwise. Finally, according to the August 2005 VA examination, the veteran's scar is only 2 centimeters (cm) by 1 cm, or 2 square cm. Diagnostic Code 7801 requires limited motion in an area exceeding 6 square inches. The veteran alleged in her October 2006 appeal to the Board that a disability rating of at least 10 percent should be awarded if there is at least one characteristic of disfigurement. However, the veteran is referencing Diagnostic Code 7800 when making this assertion, which only deals with scars of the head, face or neck, and is not applicable to the veteran's claim. Diagnostic Code 7802 deals with superficial scars throughout the rest of the body. Under Diagnostic Code, a scar must be 144 square inches in size to warrant a 10 percent disability rating. Again, the veteran's scar is only 2 cm by 1 cm, or 2 square cm. Therefore, the veteran does not qualify for a compensable disability rating based on disfigurement. The veteran is not entitled to a compensable disability rating under Diagnostic Codes 7803 or 7804 either. Diagnostic Code 7803 requires that the scar be unstable, with frequent loss of the covering of skin over the scar. There is no evidence of the veteran's scar being unstable. The veteran is also not entitled to a compensable disability rating under Diagnostic Code 7804, which requires that the scar be painful upon examination. During the August 2005 VA examination of the veteran's wrist, the examiner noted that the veteran's scar was not tender upon examination. Therefore, since the veteran's scar is not unstable or painful upon examination, a compensable disability rating cannot be assigned under these Diagnostic Codes either. Finally, Diagnostic Code 7805 requires that there be limitation of function of the affected part. The August 2005 VA examiner noted that the veteran reported that her left wrist bothered her when she typed or sewed, but Motrin would relieve this pain. Aside from the pain reported by the veteran on occasion, a medical examiner has not found the functionality of the veteran's wrist to be limited, due to scarring or otherwise. Additionally, the examiner took X- rays of the veteran's wrist during this examination, and upon review of these X-rays, determined that the veteran's wrist was normal. This examination revealed no evidence, aside from the residual scarring itself, of a current or prior injury or atrophy, and a September 2005 radiological examination revealed no fractures, dislocations, or lytic or blastic disease of the veteran's left wrist. The radiologist concluded that the veteran's left wrist was normal. Therefore, since the veteran's wrist has no indication of residuals from her prior surgery other than scarring, and since there is no indication that her scar qualifies as a compensable disability under any diagnostic code, a compensable disability rating cannot be assigned. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to a compensable disability rating for residual scarring of the left wrist. must be denied. ORDER An initial compensable disability rating for the residual scarring of an operation to remove a ganglion cyst from the left wrist is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs