Citation Nr: 1337834 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-25 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating in excess of 0 percent for residuals of a cyst removal scar of the left buttock. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from June 1975 to March 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that granted the Veteran service connection for residuals of a cyst removal scar of the left buttock, and assigned him a 0 percent disability rating that disability. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT The cyst removal scar of the left buttock, has been manifested as a well-healed scar without residuals. CONCLUSION OF LAW The criteria for a disability rating in excess of 0 percent for residuals of a cyst removal scar have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800-7805 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA must notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA has to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), 38 C.F.R. § 3.159 (2013). The notice to a claimant should be provided at the time that, or immediately after, VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement applies equally to the initial disability rating and effective date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed a letter in October 2012 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The October 2012 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claims. The Board also finds the Veteran has been provided adequate assistance in response to his claim. The Veteran's service medical records, and VA and independent examinations are of record. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. The Veteran seeks an increased rating for residuals of a service-connected scar which resulted from the removal of a cyst on the left buttock. The Veteran contends that those residuals include left leg and groin numbness. Applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought. A.B. v. Brown, 6 Vet. App. 35 (1993). Therefore, the Veteran's claim for an increased initial rating remains on appeal and consists of whether a rating of more than 0 percent is warranted for the period beginning June 2, 2011, the date that the Veteran became service-connected for residuals of a cyst removal scar. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Diagnostic Code 7800 rates disfigurement of the head, face, or neck. Diagnostic Code 7801 rates scars based upon their size that are not located on the head, face, or neck, and that are deep and nonlinear. Diagnostic Code 7802 assigns a 10 percent rating for scars covering an area or areas of 144 square inches (929 square centimeters) or greater that are not located on the head, face, or neck, that are superficial and nonlinear. Diagnostic Code 7803 was removed from the diagnostic criteria as of October 23, 2008. Diagnostic Code 7804 rates painful or unstable scars. , Diagnostic Code 7805 rates other scars (including linear scars) and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804. That diagnostic code notes that any disabling effects not considered in a rating provided under diagnostic codes 7800 through 7804, should be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2013). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). The Board will consider entitlement to staged ratings to compensate for any times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). At an October 2011 examination, the Veteran reported to the examiner that the scar on the bottom of his left buttock was caused by a cyst removal in 1982 and was caused by the drainage tube that was inserted at the site of the cyst. The Veteran stated that he had an infection of the scar area twice after the cyst removal. The Veteran reported that the scar was not painful and that he did not experience any skin breakdown. He did not report any other symptoms or any functional impairment due to the scar. The examiner noted that the scar located on the Veteran's left buttock was an abscess removal scar; that it was linear; and that it measured 16 centimeters by 5 centimeters. The examiner stated that the scar was not painful on examination; there was no skin breakdown; it was a deep scar with underlying tissue damage; inflammation was absent; edema was absent; there was no keloid formation; the scar was not disfiguring; the scar did not limit the Veteran's motion; and there was no limitation of function due to the scar. The examiner stated that there were no residuals of the Veteran's cyst removal. The examiner stated that it was at least as likely as not that the status post-cyst was related to abscess on the left buttock noted in service medical records from 1979. In a July 2012 notice of disagreement, the Veteran stated that there was tissue missing from his left buttock and muscle damage or loss. He reported that if he sat for extended periods of time, beyond 30 minutes, his left leg would start to tingle or go numb. He also reported that riding a bicycle had become difficult, as he had to sit sideways. At a December 2012 VA examination, the examiner opined that the Veteran did not have a peripheral nerve condition of peripheral neuropathy. The Veteran reported to the examiner that he experienced numbness intermittently from the left lower buttock to his groin area; that the numbness mostly occurred when he was sitting; that he had a cyst removed with a scar on the left buttock in 1981; that the numbness started in 1984; that he felt that the numbness was related to the scar; and that, at the time of the exam, the numbness was absent. The examiner stated that the Veteran had symptoms attributable to some peripheral nerve conditions, with mild numbness in the left lower extremity. The Veteran exhibited normal strength bilaterally in elbow flexion and elbow extension; wrist flexion and wrist extension; grip; pinch; knee extension; ankle plantar flexion; and ankle dorsiflexion. The Veteran had no muscle atrophy; normal deep tendon reflexes; had normal results on the sensory exam; did not exhibit any trophic changes attributable to peripheral neuropathy; and his gait was normal. The Veteran did not use any assistive devices as a normal mode of locomotion. There was no functional impairment due to a peripheral nerve condition. The Veteran did not have any scars related to any peripheral nerve conditions or to the treatment of any peripheral nerve conditions; and did not have any other pertinent physical findings, complications, conditions, signs or symptoms. The examiner noted that there were no significant diagnostic test findings or results; and that the Veteran's peripheral nerve condition or peripheral neuropathy did not impact his ability to work. The examiner opined that the claimed condition was less likely than not proximately due to, or the result of, the Veteran's service-connected disability. The examiner stated that he could not determine a baseline level of severity of the claimed condition based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the service condition. The examiner stated that, regardless of an established baseline, the Veteran's claimed condition was not at least as likely as not aggravated beyond its natural progression by the service-connected disability. The examiner stated that, in sum, the scar was not related to the Veteran's present leg and groin numbness. The Board finds that the Veteran is not entitled to a disability rating in excess of 0 percent for residuals of a cyst removal scar of the left buttock. The October 2011 examiner noted that the scar was not painful, either as reported or upon examination; that the Veteran did not experience any skin breakdown; that inflammation and edema were absent; that there was no keloid formation; and that the Veteran did not report any other symptoms or any functional impairment due to the scar. While the scar had deep underlying tissue damage and was disfiguring, it did not limit the Veteran's motion and there was no limitation of function due to the scar. The examiner stated that there were no residuals of the Veteran's cyst removal scar. The December 2012 examiner concluded that the Veteran did not have a peripheral nerve condition of peripheral neuropathy. While the Veteran reported that he experienced numbness from the left lower buttock to his groin area, and the examiner stated that the Veteran had symptoms attributable to some peripheral nerve conditions, all performed tests and examinations produced normal results. The examiner stated that there was no functional impairment due to a peripheral nerve condition, and that it was less likely than not that the leg and groin numbness were proximately due to, or the result of, the Veteran's service-connected condition. In sum, the examiner stated that the Veteran's present leg and groin numbness were not a residual of the Veteran's cyst removal scar. Therefore, those complaints will not be considered in rating the cyst removal scar as they are not shown to be a residual of the cyst or of the cyst removal or the scar. Because the Veteran's service-connected scar is not related to his present leg and groin numbness, entitlement to a disability rating in excess of 0 percent for a residual scar from cyst removal, left buttock, must denied. The evidence does not show a scar on the head, face, or neck. The evidence does not show a deep scar. The evidence does not show a superficial scar or nonlinear scar that is 929 square centimeters or greater in size. The evidence does not show an unstable or painful scar. The evidence does not show any disabling effects due to the cyst removal scar of the left buttock. Accordingly, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 0 percent for residuals of a scar from cyst removal of the left buttock, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs