Citation Nr: 1329220	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  11-09 377	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to an initial compensable rating for scarring of 
the genital area. 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Joseph Aquilina







INTRODUCTION

The Veteran had active military service from July 1991 to 
December 1995. 

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an April 2010 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio, that assigned a non-compensable disability 
rating for genital scarring, after granting service 
connection for the same.

The issue of entitlement to service connection for an 
acquired psychiatric disorder with erectile dysfunction, to 
include as being secondary to service connected scarring of 
the genital area, have been raised by the record, but have 
not been adjudicated by the Agency of Original Jurisdiction 
(AOJ).  Therefore, the Board does not have jurisdiction over 
them and they are referred to the AOJ for appropriate 
action.  


FINDING OF FACT

The Veteran has a 1 by 1.5 cm scar along the shaft of his 
penis that is slightly irregular in skin texture but does 
not result in pain or tenderness, ulceration or skin 
breakdown, inflammation, or functional loss, to include loss 
of erectile power.  
    

CONCLUSION OF LAW

The criteria for an initial compensable rating for scarring 
of the genital area have not been met.  8 U.S.C.A. § 1155 
(West 1991); 38 C.F.R. §§ 3.350, 4.31, 38 C.F.R. §§ 4.14, 
4.115b, 4.118, Diagnostic Codes 7522, 7801-7805 (2012).





REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

With respect to VA's notice obligations, because the matter 
at issue in this case concerns an appeal of an initial 
rating, VCAA notice obligations were fully satisfied once 
service connection was granted.  (Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473, 490 (2006) (holding that once a 
decision awarding service connection and assigning a 
disability rating and an effective date has been made, the 
section 5103(a) notice has served its purpose, and its 
application is no longer required because the claim has been 
substantiated).  The record in this case does not show, nor 
does the appellant or his representative contend, that any 
notification deficiencies have resulted in prejudice.  See 
Goodwin v. Peake, 22 Vet. App. 128 (holding that the 
appellant bears the burden of demonstrating any prejudice 
from defective VCAA notice with respect to the downstream 
elements such as the disability rating and effective date).

With respect to VA's duty to assist, the Board finds that no 
further action is necessary prior to further appellate 
consideration.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 
3.159 (2012).  The Veteran's service treatment records are 
on file dating back to the Veteran's entry to service.  
Post-service VA treatment records are also on file.  No 
outstanding evidence has been identified that has not 
otherwise been obtained.  

The duty to assist includes, when appropriate, the duty to 
conduct a thorough and contemporaneous examination of the 
Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  
Where the evidence of record does not reflect the current 
state of the Veteran's disability, a VA examination must be 
conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 
(1991); 38 C.F.R. § 3.327(a) (2012). The Veteran underwent a 
VA examination in March 2010. 

Concerning this VA examination, when VA undertakes to 
provide a VA examination or obtain a VA opinion, it must 
ensure that the examination or opinion is adequate.  See 
Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The report 
of the examination reflects that the examiner reviewed the 
Veteran's medical history, recorded his current complaints, 
conducted an appropriate examination, and rendered 
appropriate diagnoses and opinions consistent with the 
remainder of the evidence of record.  The Board therefore 
concludes that the examination is adequate for rating 
purposes.  See 38 C.F.R. § 4.2 (2012).  

Recognition is given to the fact that the last examination 
of the Veteran's genital scar disability is over three (3) 
years old.  The mere passage of time since that examination 
is not reason enough, alone, to require reexamination.  See 
Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Here, 
there is no objective evidence indicating that there has 
been a material change in the severity of the genital scar 
disability since the March 2010 VA examination.  The Veteran 
has not argued the contrary.

The Board also acknowledges the Veteran's contentions that 
the March 2010 VA examination was inadequate due to the 
examiner's failure to accurately describe the scarring of 
the genital area.  The Board does not agree.  As will be 
discussed in greater detail below, the March 2010 
examination considered the Veteran's personal complaints, to 
include that of skin irritation, and involved an extensive 
physical examination.

No further notice or assistance is required to fulfill VA's 
duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 
(2002).

Laws and Regulations Regarding Disability Ratings

Disability ratings are intended to compensate impairment in 
earning capacity due to a service-connected disorder. 38 
U.S.C.A. § 1155. Separate diagnostic codes identify the 
various disabilities. Id.  It is necessary to evaluate the 
disability from the point of view of the veteran working or 
seeking work, 38 C.F.R. § 4.2 (2012), and to resolve any 
reasonable doubt regarding the extent of the disability in 
the veteran's favor. 38 C.F.R. § 4.3 (2012). If there is a 
question as to which evaluation to apply to the veteran's 
disability, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria for 
that rating. Otherwise, the lower rating will be assigned. 
38 C.F.R. § 4.7 (2012).

In considering the severity of a disability, it is essential 
to trace the medical history of the veteran. 38 C.F.R. §§ 
4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded 
history is necessary so that a rating may accurately reflect 
the elements of disability present. 38 C.F.R. § 4.2 (2012); 
Peyton v. Derwinski, 1 Vet. App. 282 (1991).

While the veteran's entire history is reviewed when 
assigning a disability evaluation, 38 C.F.R. § 4.1, where 
service connection has already been established and an 
increase in the disability rating is at issue, it is the 
present level of disability that is of primary concern. 
Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has 
also held that, in a claim of disagreement with the initial 
rating assigned following a grant of service connection, 
separate ratings can be assigned for separate periods of 
time, based on the facts found. Fenderson v. West, 12 Vet. 
App. 119 (1999). The Board further acknowledges that a 
claimant may experience multiple distinct degrees of 
disability that might result in different levels of 
compensation from the time the increased rating claim was 
filed until a final decision is made. Hart v. Mansfield, 21 
Vet. App. 505 (2007). The analysis is therefore undertaken 
with consideration of the possibility that different ratings 
may be warranted for different time periods.

When all the evidence is assembled, the determination must 
be made as to whether the evidence supports the claim or is 
in relative equipoise, with the veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim, in which case the claim is denied. Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

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 7801 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.

Under Diagnostic Code 7802, scars other than head, face, or 
neck that are superficial and do not cause limited motion 
but are 144 square inches (929 square centimeters) or 
greater will be evaluated as 10 percent disabling. A note 
following the Diagnostic Code defines a superficial scar as 
one not associated with underlying soft tissue damage. 

Diagnostic Code 7803 provides for a 10 percent rating for 
unstable, superficial scars. 

Diagnostic Code 7804 allows for a 10 percent rating for 
superficial scars that are painful on examination. 

Under Diagnostic Code 7805, other scars will be rated on the 
limitation of function of the affected part. 

Discussion

In June 1994, during his military service, the Veteran 
engaged in unprotected sexual contacts and became concerned 
about some marks on the shaft of his penis. He sought 
treatment for a painful skin rash throughout the summer and 
fall of 1994. A treating physician observed flesh colored 
papules and central umbilicus. The Veteran was diagnosed 
with molluscum contagiosum. The Veteran had several 
dermatology appointments over several months in service 
regarding the molluscum contagiosum, which included being 
administered a liquid nitrogen treatment to remove the 
papules. See June, July, September, October, November and 
December 1994 treatment records.  This course of treatment 
left the veteran some scarring on his penis. See December 
2008 Private Medical Record. 

In March 2010, the Veteran was afforded a VA skin 
examination. He described itchiness on the shaft of the 
penis but denied skin breakdown or other problems.  He 
indicated that he was self-conscious of the scarring.  On 
physical examination, the scars measured 1cm and at the 
widest point 1.5cm.  The texture of the skin was slightly 
irregular.  No tenderness or pain was noted nor were 
inflammation, ulceration or breakdown of the skin.  The 
examiner observed that the color of the scar was on par with 
normal color of the skin and lacked inflammation, edema or 
keloid formation.  There was no limitation on motion or 
function caused by the scar.  

On review of the foregoing, the Board finds that the 
totality of the evidence fails to support the assignment of 
a compensable rating for the scarring of the Veteran's 
penis.  The scar measured 1.5 sq. cm., which is well short 
of the criteria needed to assign a 10 percent rating under 
Diagnostic Codes 7801 or 7802.  Indeed, even he has a scar 
that measures 15.24 cm. (6 inches) by 1.5 cm. or 22.86 sq. 
cm., as the Veteran claim, the scar would still not meet the 
criteria for a compensable rating.  Similarly, while the 
Veteran describes the scars of the penis as causing frequent 
irritation, there was no evidence that they were unstable.  
The examiner specifically noted that there was no evidence 
of ulceration or skin breakdown.  He likewise indicated that 
there was no pain or tenderness of the scar, and that the 
scar did not in and of itself cause limitation of function.  
A compensable rating under Diagnostic Codes 7803, 7804, and 
7805 would therefore be inappropriate.

Consideration has been given to whether higher ratings could 
be assigned under alternate diagnostic codes. See Butts v. 
Brown, 5 Vet. App. 532   (1993) (choice of diagnostic code 
should be upheld if it is supported by explanation and 
evidence).  See also Pernorio v. Derwinski, 2 Vet. App. 625, 
629   (1992) (indicating that any change in DC must be 
specifically explained).  Specifically, given the Veteran's 
contention that he underwent an aggressive course of 
treatment to treat his molluscum contagiosum that resulted 
in "severe scarring," consideration has been given as to 
whether a compensable rating could be assigned under 
Diagnostic Code 7522, Deformity of the penis.  However, that 
diagnostic code requires that there be loss of erectile 
power due to the deformity.  Such has not been shown.  The 
March 2010 examination specifically indicated that the scar 
itself does not cause loss or limitation of function.  A 
higher rating under Diagnostic Code 7522 is not warranted.  
Parenthetically, to the degree that the presence of scarring 
of the genital area causes the Veteran psychological 
problems ("embarrassment and humiliation") that limit his 
ability to being physically intimate, the issue of service 
connection for an acquired psychiatric disorder with 
erectile dysfunction is a separate issue that has been 
referred to the RO for development. 

In deciding this claim, the Board acknowledges that the 
Veteran is competent to report symptoms of his genital 
scarring.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); 
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 
Layno v. Brown, 6 Vet. App. 465 (1994).  Additionally, he is 
credible in his reports of symptoms and their effect on his 
activities.  He is not however competent to identify a 
specific level of disability of his disability according to 
the appropriate diagnostic code.  Such competent evidence 
concerning the nature and extent of the Veteran's service-
connected genital scarring has been provided by a VA medical 
professional who has examined him.  The medical findings 
directly address the criteria under which this disability is 
evaluated.  The Board finds this report to be the only 
competent and probative objective evidence of record, and 
therefore is accorded greater weight than the Veteran's 
subjective complaints of increased symptomatology.  See 
Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  

For all the foregoing reasons, the Veteran's claim for 
entitlement to an initial compensable evaluation for 
scarring of the genital area must be denied.  The Board has 
considered staged ratings, under Fenderson v. West, 12 Vet. 
App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 
(2007), but concludes that they are not warranted.  Since 
the preponderance of the evidence is against this claim, the 
benefit of the doubt doctrine is not for application.  
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
In considering the evidence of record under the laws and 
regulations set forth above, the Board concludes that the 
Veteran is not entitled to an initial compensable 
evaluation.


ORDER

Entitlement to an initial compensable rating for scarring of 
the genital area is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs