Citation Nr: 1329989	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  09-23 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a scar, status post kidney operation. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

H.J. Baucom, Counsel


INTRODUCTION

The Veteran had active service from May 1973 to May 1976.  

This matter comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

The Veteran's virtual VA file has been reviewed. 


FINDINGS OF FACT

1. Service connection for ureteropelvic junction obstruction was previously denied as a congenital developmental defect. 

2. Surgical treatment was performed in service to ameliorate the manifestations of the ureteropelvic junction obstruction. 

3. The Veteran has a post operative scar on his left flank without other identified disability. 


CONCLUSION OF LAW

A scar, status post kidney operation, was ameliorative, and not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

An August 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the appellant of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

The Veteran was not afforded a VA examination for his claimed scar as there is no evidence, lay or medical, of any additional disability associated with the post surgical scar (such as pain or adhesion) nor has the Veteran claimed as such.  The record is otherwise adequate.  The separation examination of the skin was normal and a 1985 outpatient examination disclosed no pertinent abnormalities.

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). 

Service Connection

The Veteran contends that he should be service connected for a scar associated with an operation done during service. 

The Veteran has reported a history of left side pain prior to service.  In February 1971 an examination of the upper urinary tract was done by means of an intravenous pyelogram, and the impression was contrast media concentrating soft tissue mass lying posterior to the main body of the left kidney with evidence of severe blockage of the collecting system. 

In December 1973 he sought medical attention and stated that he wanted to get out of the Army because of his kidney, claiming that he was born with one deformed kidney and had episodes of cramping in the left flank.  In June 1974 the Veteran was operated on for hydronephrosis, left, secondary to ureteropelvic junction obstruction.  The operation included left bulb fill ureterogram, left pyeloplasty and cystoscopy.  Upon exit from service, in May 1976, skin was found to be normal.   

The Veteran reports that he has had an 11 inch scar on his left side flank ever since the operation during service.  Lay statements from the Veteran's brother, sister, and mother also report seeing a scar on the Veteran's side in service.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  The lay statements are competent to report what has been observed through the five senses, specifically a scar on the Veteran's side in service and ever since service.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  The Board finds the Veteran's report of a current scar to be both competent and credible.  The size or presence of a current scar is not in question. 

Under 38 C.F.R. § 3.306(b)(1), the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (emphasis added) 

Here the Veteran had a condition which has been denied as a congenital or developmental defect.  That decision is final.  In service the Veteran complained of left side crampy pain, which was found to be ureteropelvic junction obstruction, and an operation was done to ameliorate (improve) his condition.  The regulations specifically address this type of situation where the usual effects of surgical treatment (a scar) for a condition incurred before enlistment and surgically treated in service to improve the condition, will not be considered service connected, unless the disease is otherwise aggravated by service.  The Court has held that where a preexisting disability has been medically or surgically treated during service and the usual effects of the treatment have ameliorated the disability so that it is no more disabling than it was at entry into service, the presumption of aggravation does not attach as to that disability.  Verdon v. Brown, 8 Vet. App. 529 (1996).

Here, service connection is sought for a post operative scar.  However, the underlying pathology was determined to be a congenital or developmental defect and service connection was previously denied for the underlying pathology.  The scar was part of the ameliorative process and therefore expected.  Such common residual (a usual effect) is not subject to service connection under the provisions of 38 C.F.R. § 3.306(b)(1).  Furthermore, there is no lay or medical evidence of unexpected disability associated with the scar.  The separation examination disclosed that the skin was normal.  The 1985 outpatient examination disclosed no pertinent abnormalities, and the lay evidence does not describe anything other than the scar, without other disability.

Although the scar did not pre-exist service, since the operation was part of the ameliorative process the expected scar (usual effect) is not subject to service connection in this case.
 

ORDER

Service connection for a scar, status post kidney operation is denied. 


____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs