Citation Nr: 1032906	
Decision Date: 09/01/10    Archive Date: 09/13/10

DOCKET NO.  08-34 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to an initial compensable rating for left hip iliac 
crest defect and scar following a bone graft. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the 
United States


ATTORNEY FOR THE BOARD

J. N. Moats, Counsel




INTRODUCTION

The Veteran had approximately 22 years of active duty service 
ending with his retirement in August 2006.
 
This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a May 2007 rating decision by a Regional Office 
(RO) of the Department of Veterans Affairs (VA).  

Additional medical evidence was submitted after the most recent 
supplemental statement of the case.  However, as this evidence 
does not address the Veteran's left hip scar, it is not pertinent 
to the claim and thus, waiver of RO consideration of this 
evidence is not necessary.  38 C.F.R. § 20.1304(c).   

The Board notes that the issues of whether the evaluation 
assigned for hypertension was clearly and unmistakably erroneous 
and entitlement to an earlier effective date for the grant of 
service connection for memory loss were also on appeal and the RO 
issued a statement of the case in September 2009.  However, in an 
October 2009 statement, the Veteran's representative withdrew the 
appeal of these issues.  Thus, there remain no allegations of 
errors of fact or law for appellate consideration of these 
issues.  See 38 C.F.R. § 20.204.


FINDINGS OF FACT

The left hip iliac crest defect and scar is painful with motion 
and use.


CONCLUSIONS OF LAW

The criteria for an initial 10 percent rating, but no higher, for 
left hip iliac crest defect and scar have been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 
4.7, 4.118, Diagnostic Codes 7804, 7805 (Prior to October 23, 
2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 
3.156(a), 3.159 and 3.326(a) (2007).  

This appeal arises from the Veteran's disagreement with the 
initial evaluation following the grant of service connection for 
the left iliac crest defect and scar.  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.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. 
Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No 
additional discussion of the duty to notify is therefore 
required.

VA also has a duty to assist the Veteran in the development of 
the claim, which is not abrogated by the granting of service 
connection.  This duty includes assisting the Veteran in the 
procurement of service treatment records and pertinent treatment 
records and providing an examination when necessary.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159.  VA has obtained service treatment 
records as well as VA treatment records.  The Veteran has 
submitted, or VA has obtained on his behalf, private medical 
records.  A VA examination was afforded the Veteran; the examiner 
made all necessary findings and expressed a rationale for 
conclusions reached.  The examination is adequate for 
adjudication purposes.  All known and available records relevant 
to the issues on appeal have been obtained and associated with 
the appellant's claims file; and the appellant has not contended 
otherwise.  

VA has substantially complied with the notice and assistance 
requirements and the appellant is not prejudiced by a decision on 
the claim at this time.



II.  Evaluation of Service Connected Disabilities

In evaluating the severity of a particular disability, it is 
essential to consider its history.  38 C.F.R. § 4.1; Peyton v. 
Derwinski, 1 Vet. App. 282 (1991).  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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58  
(1994).  Separate ratings may be assigned for separate periods of 
time based on the facts found, however.  This practice is known 
as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 
126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the 
claim will be granted.  A claim will be denied only if the 
preponderance of the evidence is against the claim.  See 38 
U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt 
regarding the degree of disability should be resolved in favor of 
the claimant.  38 C.F.R. § 4.3.  Where there is a question as to 
which of two evaluations shall be applied, the higher rating will 
be assigned if the disability picture more nearly approximates 
the criteria required for that evaluation.  Otherwise, the lower 
rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the 
facts presented to VA's Schedule for Rating Disabilities (Rating 
Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained 
in the Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity resulting 
from diseases and injuries incurred or aggravated during military 
service and the residual conditions in civilian occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

During the course of the appeal, effective October 23, 2008, VA 
amended criteria for rating the skin so that it more clearly 
reflects VA's policies concerning the evaluation of scars.  
Specifically, these amendments concern 38 C.F.R. § 4.118, 
Diagnostic Codes 7800-7805.  The amendments apply to all 
applications for benefits received by VA on or after October 23, 
2008.  See 73 Fed. Reg. 54,708 (September 23, 2008).  Even though 
the Veteran's claim was received prior to this date, it appears 
that the RO considered these amendments in an April 2009 
supplemental statement of the case.  Those criteria are not 
applicable to this appeal.  The Veteran has not requested that 
the new criteria be considered in his case, and his arguments are 
based, correctly, on the application of the older criteria.  
38 C.F.R. § 4.118 (2009).

The RO has rated the Veteran's disability under Diagnostic Code 
7802, which provides (prior to October 23, 2008) that if a scar 
on other than the head, face or neck is superficial (not 
associated with soft tissue damage) and does not cause limited 
motion, a maximum 10 percent rating is assigned if an area or 
areas of 144 square inches (929 sq. cm.) or greater are affected.  

The Veteran has specifically requested a 10 percent disability 
evaluation under Diagnostic Codes 7804 or 7805, in the 
alternative, as more appropriate.  Under Diagnostic Code 7804, a 
scar that is superficial and painful on examination will be 
assigned a maximum 10 percent rating.  Diagnostic Code 7805 
provides that a scar may also be evaluated based on limitation of 
function of the affected part.  38 C.F.R. § 4.118 (prior to 
October 23, 2008). 

The only pertinent medical evidence of record concerning the 
Veteran's left hip iliac crest defect and scar is an April 2007 
VA examination.  The claims file was reviewed.  The Veteran 
reported that his clothing and belt rode on the left anterior 
iliac causing mild to moderate pain.  He did not take any pain 
medication.  Stooping and bending on occasions would result in 
pain in the left anterior iliac crest scar.  Examination revealed 
a left anterior iliac scar, which was 3 inches in length.  There 
was tenderness not in the scar per se, but in the area of the 
bony iliac crest.  There seemed to be a bony defect approximately 
3 cm in length and 2 cm in width due to removal of bone.  It was 
more likely than not that this bony defect was causing pain due 
to his clothing and belt.  The 3 inch healed scar had healed 
perfectly.  The underlying difficulty was with the bony defect.  
A contemporaneous x-ray revealed an irregularity of the left 
anterior superior iliac crest consistent with bone graft removal.  
The diagnosis was painful bone graft removal site left anterior 
iliac crest.   

While it is in fact the bony defect underlying the scar which 
causes the pain, the Board finds that application of the criteria 
for evaluation of scars and skin defects is appropriate, given 
the location of the disability and the manifestations.  38 C.F.R. 
§ 4.20.  Further, given the reported size of the scar and defect, 
and the symptomatology, application of Code 7804 (prior to 
October 23, 2008) is most appropriate.  The scar site, if not the 
scar itself, is tender and painful, and causes no current 
functional impairment of the hip.

In the April 2008 notice of disagreement, as well as in a May 
2009 statement (VA Form 646) and August 2010 Informal Hearing 
Presentation from the Veteran's representative, the Veteran 
specifically requested a 10 percent disability rating for his 
left hip iliac crest defect and scar.  The Board finds that the 
Veteran clearly limited his appeal to entitlement to a 10 percent 
disability rating.  Thus, as this decision is a full grant of the 
benefits sought, the Board is not required to consider 
entitlement to other ratings for that disability.  AB v. Brown, 6 
Vet.App. 35, 39 (1993). 

In conclusion, a 10 percent rating, but no higher, is warranted 
for left hip iliac crest defect and scar under Diagnostic Code 
7804.   


ORDER

A 10 percent rating, but no higher, is warranted for left hip 
iliac crest defect and scar.  To that extent, the appeal is 
granted, subject to the law and regulations governing the payment 
of monetary benefits.  




____________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs