Citation Nr: 1301630 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-15 732 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to higher initial disability ratings for scar residual of right inguinal hernia repair, evaluated as 0 percent (noncompensable) disabling for the period from June 22, 2007, to October 30, 2011; and evaluated as 10 percent disabling for the period from October 31, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the RO that, in pertinent part, granted service connection for scar residual of right inguinal hernia repair evaluated as 0 percent (noncompensable) disabling effective June 22, 2007. The Veteran timely appealed for a higher initial rating. In October 2011, the Board remanded the matter for additional development. In July 2012, VA's Appeals Management Center (AMC) increased the disability evaluation to 10 percent for scar residual of right inguinal hernia repair, effective October 31, 2011. Because higher evaluations are available for scar residual of right inguinal hernia repair, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran continues to work. He has not alleged that his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record, and the Board finds it unnecessary to remand the matter for further action. FINDING OF FACT Throughout the course of the rating period on appeal (from June 22, 2007), scar residual of right inguinal hernia repair has been tender and painful; three or more scars that are unstable or painful, or loss of function of the body part affected have not been demonstrated. CONCLUSION OF LAW The criteria for an initial 10 percent, but no higher, disability evaluation for scar residual of right inguinal hernia repair, from June 22, 2007, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claim arises from his disagreement with the initial evaluations assigned 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to this claim for higher initial disability ratings have been obtained, to the extent possible. The RO provided the Veteran with appropriate VA examinations, and there is no evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined. The Board finds the examination reports to be thorough and adequate upon which to base a decision with regard to this claim. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of scar pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Service connection has been established for scar residual of right inguinal hernia repair, effective June 2007. The RO has evaluated the Veteran's disability under 38 C.F.R. § 4.118, Diagnostic Code 7804, pertaining to scars. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. A deep scar is one that is associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2). A scar at a location other than the head, face, or neck that is deep or that causes limitation of motion would have to have an area exceeding 6 square inches (39 square centimeters) to warrant a 10 percent rating, 12 square inches (77 square centimeters) to warrant a 20 percent rating, 72 square inches (465 square centimeters) to warrant a 30 percent rating, or 144 square inches (929 square centimeters) to warrant a 40 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7801. A superficial scar is one that is not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (2). A scar at a location other than the head, face, or neck that is superficial and that does not cause limitation of motion would have to have an area exceeding 144 square inches (929 square centimeters) to warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent evaluation is provided for superficial scars that are poorly nourished with repeated ulcerations under 38 C.F.R. § 4.118, Diagnostic Code 7803; or for superficial scars that are tender or painful on objective demonstration under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). Disabling effects are to be rated either as scars or as impairment of function, whichever results in the higher rating. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). Although, no more than one of these ratings may be assigned without violating the rule against the pyramiding of disabilities. 38 C.F.R. § 4.14. During the course of this appeal, VA revised the criteria for evaluation of scars, effective on October 23, 2008. 73 Fed. Reg. 54708 (September 23, 2008) (codified at 38 C.F.R. § 4.118 (2009)). Initially, the revised criteria were applicable only to claims received by VA on or after October 23, 2008; and, hence, were inapplicable in this case. Since then, VA published a correcting amendment to allow Veterans whose scars were rated by VA under the former criteria (versions in effect prior to October 23, 2008) to request evaluation review under the revised criteria. See 77 Fed. Reg. 2909 (January 20, 2012). The correction amendment specifically encompasses claims that have received an initial rating, and are still pending in the appeals process. Id. The correction is effective January 20, 2012. Accordingly, the Board accepts the Veteran's November 2012 correspondence (Appellant's Post-Remand Brief) as a request for review under the revised criteria. As the RO or AMC also considered both the former and revised criteria in the April 2008 statement of the case and in the July 2012 supplemental statement of the case, respectively, the Veteran is not prejudiced by the Board's proceeding in this manner. The revised criteria for Diagnostic Code 7804 provide that one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1) (October 23, 2008). Alternatively, the revised criteria provide that disabling effects not considered in a rating provided under Diagnostic Codes 7801, 7802, and 7804 are to be rated as impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7805 (October 23, 2008). For the Period from June 22, 2007, to October 30, 2011 In this case, the objective evidence supports an initial, compensable disability rating on the basis of scars under the former criteria. The report of VA examination in June 2007 reflects that the Veteran underwent right inguinal hernia repair approximately four years earlier. The Veteran described three surgical hernias done at once. Examination of the Veteran's abdomen revealed a small, hardly perceptible, U-shaped incision right under his belly button-which, the examiner noted, must have been a belly button hernia. There was a very tiny two-inch horizontal scar in the right inguinal hernia area. No palpable hernia was felt in either location. The Veteran reported having a little burning sensation in the right inguinal hernia site, when he lifted things. The Veteran reported that he sometimes had to stop and catch his breath, but otherwise had no problem. Given these findings, the Veteran's complaints of a burning sensation at the site of the inguinal hernia repair, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence meets the criteria for an initial 10 percent disability rating under Diagnostic Code 7804. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The evidence does not reflect any functional impairment from scar residual of right inguinal hernia repair during the rating period. Solely on the basis of a painful scar on objective examination, the evidence does not meet either the former or revised criteria for an initial disability rating in excess of 10 percent under any diagnostic code. 38 C.F.R. § 4.7. The objective clinical findings outweigh the Veteran's lay assertions regarding severity. For the foregoing reasons, a preponderance of the evidence is in favor of a 10 percent, but no higher, evaluation from June 22, 2007, for scar residual of right inguinal hernia repair. For the Period from October 31, 2011 Here, the objective evidence does not support a higher disability rating on the basis of scars, from October 31, 2011. The report of an October 2011 VA examination reflects the presence of one painful scar. The Veteran had reported mild discomfort with palpation over the umbilical scar. The Veteran also reported that the prior burning sensation in the right inguinal scar had resolved. Examination of the Veteran's anterior trunk revealed two scars. There was a four-centimeter linear scar just below the umbilicus, which was stable and mildly tender to palpation. There was a seven-centimeter linear scar over the Veteran's right lower abdomen, which was barely visible; the scar was neither tender nor unstable. There was no bulging or recurrence of hernia. Records show that the Veteran did not claim any impairment resulting from the scar, secondary to surgery for his right inguinal hernia. The objective evidence reflects that the Veteran's service-connected scar residual of right inguinal hernia repair has been manifested primarily by a seven-centimeter linear scar that is neither painful nor unstable. Solely on the basis of this one scar, the evidence does not meet the criteria for a higher disability rating, from October 31, 2011, either under the former or revised criteria. 38 C.F.R. § 4.118, Diagnostic Code 7804. In November 2012, the Veteran contended that a higher disability rating was warranted because he had more than one scar which was painful; or that he had unstable scars, with at least one scar being both painful and unstable. The Board notes, however, that no examiner had indicated that any scar was poorly nourished with repeated ulcerations or unstable. Moreover, while records show that service connection has been awarded based on a finding of right dilated inguinal ring at the time of the Veteran's separation from active service, his service treatment records show neither complaints nor treatment for a belly button or umbilical hernia. Service connection is not in effect for any other scars. As such, symptoms attributable to non-service-connected disabilities may not be considered in the evaluation of the service-connected scar residual of right inguinal hernia repair. 38 C.F.R. § 4.14. Hence, three or more scars that are unstable or painful have not been demonstrated to warrant a higher disability rating based on scars under the revised criteria. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Loss of function of the body part affected has not been demonstrated; no other diagnostic codes are applicable. Thus, the weight of the evidence is against the grant of a higher disability rating for scar residual of right inguinal hernia repair, from October 31, 2011. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Again, the objective clinical findings outweigh the Veteran's lay assertions regarding severity. Extraschedular Consideration Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected scar residual of right inguinal hernia repair is adequate in this case. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Throughout the course of the rating period on appeal (from June 22, 2007), a 10 percent disability rating for scar residual of right inguinal hernia repair is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs