Citation Nr: 1336123 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 08-20 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable evaluation for a residual scar from Caesarian sections (C-sections). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for residuals of a C-section scar and assigned a noncompensable evaluation, effective May 26, 2006. The issue has been recharacterized as noted on the title page to better reflect the medical evidence. In March 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In May 2012, the Board remanded the issue so that a VA examination could be scheduled. There has been substantial compliance with the May 2012 Remand Order. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service-connected residual scar from C-sections is slightly adherent to the underlying tissue and is manifested by itching and numbness. There is no evidence of functional loss. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, and no more, for a residual scar from C-sections have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.118, Diagnostic Codes (DC) 7801 to 7805 (prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Veteran's appeal arises from the grant of service connection for a residual scar from C-sections. 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). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that VA has complied with its duty to assist the Veteran in the development of her claim, to include substantial compliance with the May 2012 Board Remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The claims file contains the Veteran's service treatment records (STRs), VA treatment records, and lay statements. The Board has carefully reviewed such records and concludes that no available outstanding evidence has been identified. Additionally, the Veteran was afforded VA examinations pertaining to her C-section scar in July 2006 and August 2012. The VA examiners fully addressed the Veteran's symptoms and objective data, and addressed all relevant rating criteria. See 38 C.F.R. § 3.326 (2013); Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, the examination reports obtained are thorough and contain sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran also presented oral argument in support of the claim in a hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2013) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim for an increased evaluation and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue in appellate status. II. Initial Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, VA is responsible for determining 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During service, the Veteran underwent two C-sections. The same incision was used for each of her surgeries. The RO granted service connection for a residual C-section scar in October 2006 and assigned a noncompensable evaluation, effective May 26, 2006. The Veteran currently seeks a compensable evaluation. The criteria for rating scars under 38 C.F.R. § 4.118 were revised effective October 23, 2008. Application of the revised criteria is limited to claims filed on or after October 23, 2008. Here, the Veteran's claim was received in 2006. Accordingly, the revised schedular rating criteria are not applicable in this case and those in effect prior to October 23, 2008 must be applied. Under the criteria in effect prior to October 23, 2008, scars were rated under DCs 7800 to 7805. DC 7800 pertains to scars of the head, face, or neck and is not applicable here. DC 7801 provides a rating for a scar that is deep or that causes limited motion with a 10 percent rating assigned for a scar exceeding 6 square inches (39 sq. cm.) in area. DC 7802 provides a rating for a scar that is superficial or does not cause limited motion with a 10 percent rating for a scar that covers 144 square inches (929 sq. cm.) or more. DC 7803 provides a 10 percent rating for a superficial unstable scar. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. DC 7804 provides a 10 percent rating for a superficial scar that is painful on examination. DC 7805 provides that a scar may be rated on limitation of function of the affected part. 38 C.F.R. § 4.118. The Veteran underwent a VA examination July 2006, at which time she reported itching and numbness in her C-section scar. Examination revealed a 10 cm curvi-linear scar in the pelvic area. The scar was slightly irregular. It was not tender to palpation. The scar was depressed approximately 1 cm throughout the length of the scar, and there was deep underlying tissue loss throughout the length of the scar. There was also numbness throughout the whole length of the scar to light touch and pinprick. There was no adherence, ulceration, breakdown, inflammation, edema, or keloid formation. It did not cause limitation of function or motion. The Veteran underwent another VA examination in August 2012, at which time she continued to complain of itching and numbness. She also described an occasional "pulling" feeling beneath the scar. She complained that certain undergarments rub the incision line and cause irritation. The Veteran described the scar as disfiguring and embarrassing. According to the Veteran, her doctor had suggested surgery to "even out" the scar. Examination revealed a 13.5 cm bikini line scar in the Veteran's pelvic area. The scar was non-tender. There was no disfigurement. However, there were three depressed areas in the scar line, each 1 cm long and 1 cm deep. The scar was freely moveable except for those three areas where the scar was adherent to underling tissue. The examiner noted that the Veteran's abdominal panniculus was more noticeable due to the three points of scar adherence. There was local post-surgical decreased sensation (without actual numbness) to light touch directly over the surgical scar region, but less than .5 cm beyond the scar in any direction. There was normal skin pigment. The scar was not irregular, atrophic, shiny, or scaly. It did not cause limitation of function or motion. The Veteran's March 2012 testimony reiterates the complaints she voiced during the VA examinations. She also stated that she uses hydrocortisone cream to alleviate the itching. VA treatment records are negative for treatment of the C-section scar. The Board finds that a 10 percent evaluation is warranted for residuals of the Veteran's C-section scar. The Veteran has repeatedly complained of itching, numbness, and a pulling sensation upon bending. The Veteran is competent to report current symptoms associated with her scar. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation). The Board finds that her statements regarding the scar have been consistent and are credible. In addition, although the examiners noted that the scar is well healed, they observed adherence to underlying structures and/or deep underlying tissue loss. While the examiners did not note pain related to the scar, they specifically noted the Veteran's reports of irritation. This symptomatology warrants a 10 percent evaluation. The Board notes that a 10 percent evaluation is the maximum evaluation available under DCs 7801-7804. In addition, the Veteran's scar does not cause limitation of function or motion. Thus, an evaluation in excess of 10 percent is not warranted under DC 7805. Based on the foregoing, the Board concludes that entitlement to a 10 percent evaluation for the Veteran's residual C-section scar is warranted In light of the holding in Hart, the Board has considered whether the Veteran is entitled to "staged" ratings. Based upon the record, the Board must conclude that at no time during the appeal period has this disability been more disabling than as currently rated under the present decision of the Board. Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation 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. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. 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. Id. at 116. The schedular evaluation in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the scar, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's scar. The scar is linear and irritated with no impairment in function. The Veteran has described symptomatology regarding her C-section scar that includes numbness, itching, and treatment with hydrocortisone cream. These symptoms described by the Veteran fit appropriately with the criteria found in the relevant DCs for the disability at issue. She has also testified that her underwear sometimes rubs against the scar and irritates it. This impairment is not fully contemplated by the rating criteria applicable. However, the Veteran has not required hospitalization due to the scar, and there is no evidence of marked interference with employment solely due to the scar. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. Last, an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. The Veteran has not reported that she is unemployed or that the C-section scar causes her to be unemployable. The record indicates that the Veteran works full-time. Accordingly, further consideration of entitlement to TDIU is not required. ORDER An initial rating of 10 percent for residual scar from C-sections is granted, subject to the laws and regulations governing monetary benefits. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs