Citation Nr: 1313436 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-25 611 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to rating in excess of 10 percent for scar, status post left varicocele repair, to include a compensable rating earlier than November 26, 2012. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from September 2000 to November 2008. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's varicocele surgery scar has been painful for the duration of his appeal. 2. The Veteran's single service connected scar covers an area that is smaller than 39 sq. cm.; and it does not limit function. CONCLUSION OF LAW Criteria for a rating of 10 percent for the Veteran's varicocele surgery were met as of November 26, 2008, but the criteria for a rating in excess of 10 percent have not been met. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7801, 7802, 7804, 7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that 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 the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. 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 propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In October 2008, the Veteran filed a claim for service connection for the residual scar that resulted from varicocele surgery he underwent in service. Service connection was granted by a January 2009 rating decision which assigned a noncompensable rating as of the Veteran's separation from service in November 2008. The Veteran appealed this decision, seeking a 10 percent rating. He was provided with a VA examination in November 2012 and based on the findings at that examination he was granted a 10 percent rating as of the date of the examination (November 26, 2012). The Board must thus consider whether a rating in excess of 10 percent is warranted for the Veteran's varicocele surgery scar, and whether a compensable rating is warranted for the scar earlier than November 26, 2012. The Veteran's scar is evaluated under 38 C.F.R. § 4.118, DCs 7804-7805. Scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, DCs 7801-7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A 20 percent rating is assigned when the scar involves an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). Under Diagnostic Code 7804, a 10 percent rating is assigned when there are one or two scars that are unstable or painful. A 20 percent rating is assigned when there are three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Additionally, Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate diagnostic code. The Veteran was afforded a VA general medical examination in November 2008 and a VA scars examination in December 2008. The examiners indicated that the Veteran's left varicocele repair scar had no functional impact or other effect on his usual daily activities. The Veteran reported having experienced intermittent pains after running or lifting weights, and had tenderness at the site of the operation. It was noted that the Veteran had a scar at the left inguinal fold that was 1.0 cm x 5.0 cm, healed linear incision, with no disfigurement, and covering zero percent of exposed areas, and less than five percent of the total body surface. The examiner at the scar examination found that there was no pain as a result of the surgery and no skin breakdown. There was no objective evidence of tenderness on palpation, and no adherence to the underlying tissue. The scar did not result in limitation of motion or loss of function, and there was no underlying soft tissue damage or skin ulceration/breakdown over the scar. In his May 2009 notice of disagreement, the Veteran stated that he considered his scar disabling because there was pain associated with the operative site both during and after running or lifting weights. The Veteran stated that at rest or when pressure was applied there was pain at a level of 1. In his substantive appeal, the Veteran indicated that he was seeking a 10 percent rating for the scar. He admitted that the scar itself was not disabling according to VA standards, but he asserted that the surgery residuals limited his normal physical activities such as running or lifting weights. Given the Veteran's complaints, the Board remanded the Veteran's claim for an additional VA examination, which was provided in November 2012. The examiner found that the Veteran's scar was in fact painful and caused discomfort with strenuous physical activities, such as heavy lifting and running. The examiner found that the scar was not unstable and measured 1.0 cm x 5.0 cm. The scar did not result in limitation of function. In this case, the Veteran has been assigned a 10 percent rating for his varicocele surgery scar based on a finding that it was painful. A rating in excess of 10 percent is clearly not warranted, as there is only one scar that measures 1.0 cm x 5.0 cm.; which is well less than the 39 sq. cms. that would be required for even a 10 percent rating under Diagnostic Code 7801. Additionally, the scar is not shown to be superficial or nonlinear so as to warrant a compensable rating under Diagnostic Code 7802. As noted, the scar is painful, thus meriting the assigned 10 percent rating under Diagnostic Code 7804. However, a rating in excess of 10 percent is not warranted as there is only one scar, and a higher rating under this Diagnostic Code would require at least three painful scars. Additionally, there is no showing that the scar causes any effect(s) that has not been considered. In fact, at the most recent VA examination, the examiner indicated that the scar did not cause any limitation of function, and similar findings were made at the earlier VA examinations. As described, the schedular rating criteria for a rating in excess of 10 percent have not been met at any time during the course of the Veteran's appeal, and therefore a schedular rating in excess of 10 percent is denied. The Board now turns to the issue of a whether the assigned 10 percent rating should be assigned earlier than November 26, 2012. As an initial point, lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran's rating is based on the fact that the scar from his varicocele surgery is painful. Pain is certainly a symptom that the Veteran is capable of describing, and there is no evidence that calls the credibility of the Veteran's statements into question. Quite the contrary. Here, the Veteran has consistently reported that his scar becomes painful with strenuous exercise or with weight lifting. He consistently reported this fact at his initial VA examination in 2008, in his notice of disagreement, in his substantive appeal, and finally at his 2012 VA examination. This consistency in reporting bolsters the credibility of his statements. A compensable rating prior to November 2012 was denied in essence because the VA examinations in 2008 did not find the scar to be tender to palpation and did not find it to be painful. However, the Veteran has never alleged that the scar is particularly symptomatic at rest, such as it would be during a VA examination. Rather, his contention is that the scar becomes painful with exertion, and there is no indication that any exertional component was part of the initial VA examination. Having digested the Veteran's statements, the Board believes that the Veteran's scar related symptoms have not changed since he filed his claim, and that his service connected scar has been painful on exertion since that time. As such, the Board concludes that the 10 percent rating should be effective as of the date of the Veteran's separation from service in 2008, and to this extent the Veteran's claim is granted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's varicocele surgery scar that would render the schedular criteria inadequate. The Veteran's only reported scar symptom is pain which is specifically contemplated in the rating assigned. As such, the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, and referral for consideration of an extraschedular rating is not warranted. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for a residual scar from the Veteran's varicocele surgery was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the Veteran has submitted statements on his behalf, and VA treatment records have been obtained. Additionally, there is no indication that he has received any private treatment for his varicocele surgery scar, aside from the surgery from which records have been obtained. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's varicocele surgery scar since the November 2012 VA examination. The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. ORDER A 10 percent rating for the Veteran's varicocele surgery scar is granted as of the date of his separation from service, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 10 percent for the Veteran's varicocele surgery scar is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs