Citation Nr: 0320070 Decision Date: 08/13/03 Archive Date: 08/25/03 DOCKET NO. 01-08 989A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for residuals of an urachal cyst, post operative, with retained metallic sutures, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for asbestosis as a result of asbestos exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst, Associate Counsel INTRODUCTION The veteran served on active duty from August 1955 to August 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that denied an increased evaluation for residuals of an urachal cyst, post operative, with retained metallic sutures. Also on appeal is a February 2002 rating decision from the RO that denied service connection for asbestosis as a result of exposure to asbestos. The issue of service connection for asbestosis will be addressed in the remand portion of the decision. FINDINGS OF FACT 1. All of the evidence necessary for an equitable disposition of the claim has been obtained by the RO. 2. The veteran's postoperative scar, residuals of an urachal cyst, is manifested by pain. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of an urachal cyst, post operative; with retained metallic sutures have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). The Act and implementing regulations essentially eliminate the concept of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.102 (2002). They also include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002). In addition, they define the obligation of VA with respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). Considering the record in light of the above, the Board finds that the passage of the VCAA and its implementing regulations does not prevent the Board from rendering a decision on the claim on appeal as all notification and development action needed to render a fair decision on the claim, to the extent possible, been accomplished. In this regard, a September 2001 statement of the case and September 2002 supplemental statement of the case (SSOC) notified the veteran and his representative of the law and regulations governing entitlement to the benefit sought, the evidence that would substantiate the claim, and the evidence that has been considered in connection with the appeal. Correspondence dated in March 1999 advised the veteran of information relevant to his claim. In correspondence dated in March 2002, the veteran was advised of provisions of the VCAA to include what the evidence must show to establish entitlement to benefits, what information or evidence was needed from the veteran, what action the RO would take to help substantiate the claim, VA's duty to assist the veteran in obtaining evidence, and action that has been taken to develop t he claim. The aforementioned documents, which are herein incorporated by reference, collectively satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). In addition, pertinent post-service medical records have been associated with the record, and the veteran has undergone examinations, where indicated, in connection with the claim on appeal. Furthermore, the veteran has opted not to testify at a hearing. Correspondence from the veteran dated in March 2003 indicated that there was no additional evidence to submit. Factual Background Service connection for the veteran's postoperative urachal cyst residuals was established in a July 1963 rating decision based on evidence that an infected cyst was removed from the umbilical area in service. A 10 percent evaluation was assigned based on evidence of a painful scar. Over the years, the veteran has made unsuccessful attempts to have the evaluation for postoperative urachal cyst residuals increased. The veteran underwent a VA examination in April 1999. He complained of abdominal pain around the navel that worsened when he bent over or when he sat for long periods of time. Upon examination, there was a scar through the area of the navel on both sides that was a total of about 10 to 12 cm. The scar was somewhat harder and adhered to the subcutaneous tissue. The scar was quite tender on the left side above the navel. In this location, there may have been some resistance of foreign body in the muscle. There was no ulceration, tissue loss, or disfigurement. The scar was not depressed or elevated. Due to the location of the scar, tension of the rectal muscles probably caused some pain. The veteran underwent a VA examination in February 2002. He did not report any new complaints. The examiner indicated the scar was 16 cm. long and fit into an abdominal fold just under the umbilicus. Slight tenderness was noted. There was no adherence, underlying tissue loss, ulceration, elevation, or depression of the scar. There was no loss of function due to pain. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2002). Separate diagnostic codes identify the various disabilities. In addition, VA has a duty to acknowledge all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski , 1 Vet. App. 589 (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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Regulations require that where there is a question as to which of two evaluations is to 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. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2002). Effective August 30, 2002, the rating criteria for skin disorders were revised. The Board notes that the criteria applicable to the veteran's service-connected scars of the right lower leg are essentially unchanged. The Board finds that its consideration of both the new and old criteria is therefore not prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The old criteria provided that a superficial scar that is tender and painful on objective demonstration also is rated 10 percent. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2002). The new criteria provide that a superficial scar which is painful on examination is rated 10 percent. 38 C.F.R. § 4.118, Diagnostic Code 7804 (as revised on August 30, 2002). The postoperative residuals of an urachal cyst are currently evaluated under Diagnostic Code 7804, scars. Both VA examinations noted that the veteran's scar was painful. Although the veteran contends that the evaluation should be higher due to increased pain, the rating criteria for this code does not differentiate levels or frequency of pain. The Board emphasizes that 10 percent is the maximum level of compensation available for veteran's postoperative scar. Evaluation of the veteran's postoperative residuals of an urachal cyst would not result in a higher evaluation under other diagnostic codes relative to scars. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Scars may also be evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7805 (2002) based on limitation of the affected body part. A higher evaluation is not warranted under this code since the VA examiner indicated that there was no loss of function due to pain. Disfiguring scars of the head, face or neck provide for higher evaluations; however, the location of the veteran's scar precludes evaluation under 38 C.F.R. § 4.114, Diagnostic Code 7800 (2002). Scars due to burns also provide for evaluations higher than 10 percent, but an evaluation under 38 C.F.R. § 4.114, Diagnostic Code 7801 (2002) is inappropriate as the veteran has a surgical scar. Since the preponderance of the evidence is against the veteran's claim for an increased evaluation for postoperative residuals of an urachal cyst, the benefit of the doubt doctrine does not apply and the claim is denied. 38 U.S.C.A. § 5107(b). Additionally, the record does not establish that the schedular criteria are inadequate to evaluate the disability, so as to warrant referral to the RO for consideration of an assignment of a higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2002). In this regard, the Board notes that there is no showing that the disability under consideration has resulted in marked interference with employment or frequent periods of hospitalization (i.e., beyond that contemplated in the assigned percentages). In the absence of evidence of such factors, the Board finds that the criteria for submission for assignment of an extra- schedular rating are not met. ORDER Entitlement to an increased evaluation for postoperative residuals of an urachal cyst is denied. REMAND Although the veteran has been given proper notification of the VCAA, the RO has not met all of the requirements in assisting the veteran with the development of his claim for service connection for asbestosis. While there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. With asbestos-related claims, the Board must also determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind provisions related to latency and exposure. M21-1, Part VI, 7.21(a)(1), (d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). The guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. Also of significance is that an asbestos-related disease can develop from brief exposure to asbestos or from being a bystander. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1, part VI, para. 7.21(a)(1). The veteran's DD Form 214 showed that he worked as a gunner's mate in the Navy. Statements made by the veteran indicated that he was exposed to asbestos in the course of his in- service and post-service occupational duties. Post-service medical records are not in agreement regarding a diagnosis of asbestosis. Positive diagnoses for asbestosis were made in October 1997 by a private physician and by a VA physician in January 2002 by history only; however, a VA physician in February 2002 indicated that there was no clinical evidence of asbestosis. Due to the conflicting evidence regarding the diagnosis, the veteran should be scheduled for another VA examination. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and obtain the names and addresses of all health care providers who have treated him for asbestosis since service. After securing the necessary releases, the RO should request copies of any medical records that have not been previously obtained. Any such records obtained should be associated with the claims file. Unsuccessful attempts at procuring any medical records must be documented in writing. 2. The RO should obtain copies of the veteran's service personnel records to ascertain the nature and extent of his in-service asbestos exposure. All documents received should be associated with the claims file. 3. After the above development has been completed, to the extent possible, the veteran should be afforded a comprehensive VA examination by a pulmonary specialist with experience in assessing asbestos-related diseases. The claims folder should be made available to the physician for review in conjunction with the examination and a notation to the effect that this record review took place should be included in the examination report. All necessary studies, including a high resolution CT scan should be performed. The physician should specifically report whether any parenchymal fibrosis or other asbestos- related disorders are demonstrated. If the veteran is found to have asbestosis or any other asbestos-related lung disorder, then an opinion should be provided whether it is at least as likely as not that that the disorder is related to service to include any in-service asbestos exposure, or is it more likely than not related to civilian asbestos exposure. All findings should be reported in detail along with a complete rationale for any opinion expressed. The foundation for all conclusions should be clearly set forth. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on this claim. 4. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. 5. After ensuring that the provisions of the VCAA have been complied with, the RO should readjudicate this claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The purpose of this REMAND is to obtain additional information and to ensure due process of law. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.