Citation Nr: 1338578 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-29 057 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a higher rating for a keloidal scar of the abdomen, umbilicus to symphysis pubis, currently rated as 10 percent disabling. 2. Entitlement to a compensable rating for residuals of uterine myomectomies. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from November 1999 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Salt Lake City, Utah. Among other things, the RO denied service connection for leiomyoma (uterine myomectomies) and awarded service connection for a keloidal scar of the abdomen with a noncompensable rating. The Veteran also appealed a June 2010 RO decision granting service connection for uterine myomectomies with a noncompensable rating. This rating decision also awarded an increased rating of 10 percent for the service-connected keloid scar. In February 2013, the Board remanded the appeal for the agency of original jurisdiction (AOJ) to consider newly received evidence associated with the Virtual VA electronic folder (efolder). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's abdominal scar is deep, but is not unstable and is of no area greater than 12 square inches (77 square centimeters). 2. The Veteran does not have uterine fibroids or other symptoms following myomectomies that necessitate continuous treatment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for abdominal scar are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, and 7805 (2008). 2. The criteria for an initial compensable rating for residuals of uterine myomectomies are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.116, Diagnostic Codes 7613, 7628 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appeal arises from disagreement with the initial rating following the grants of service connection. The courts have held that once service connection is granted, the claim is substantiated. Additional VCAA 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). Nevertheless, the record indicates that the Veteran was provided with notice in May 2008 on the information and evidence necessary to substantiate her service connection claims, including degree and disability and effective date, as part the VA Benefits Delivery at Discharge program. She was later notified about the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide in May 2010, August 2010, February 2011, and June 2013 letters. The appeal was subsequently readjudicated in a July 2013 Supplemental Statement of the Case. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to notify has been met. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, February 2009 cesarean section operative report, and VA treatment records. The Veteran was afforded May 2008 and April 2011 VA gynecological examinations. She had a July 2008 VA general medical examination. She also had October 2010, March 2011, and June 2011 VA scar examinations. There is no indication that the Veteran's keloidal scar or uterine myomectomy residuals have materially increased since the most recent VA examinations. In the February 2013 remand, the Board instructed the AOJ to readjudicate the claims with consideration to the evidence assembled since its last adjudication in October 2010. The AOJ issued a July 2013 Supplemental Statement of the Case. Accordingly, the AOJ substantially complied with all of the Board's relevant February 2013 remand instructions and VA has no further duty to obtain any additional records or conduct additional examinations. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). II. Analysis The Veteran contends that her service-connected keloid scar of the abdomen and uterine myomectomy residuals are more disabling than reflected by the currently assigned 10 percent and noncompensable ratings, respectively. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 the propriety of the initial rating assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Scar In October 2008, the RO awarded service connection for a keloid scar of the abdomen and assigned a noncompensable rating pursuant to Diagnostic Code (DC) 7801-7805. 38 C.F.R. § 4.118, DC 7801-7805. Beginning October 2008, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended. Although the RO applied the amended rating criteria, the regulations clearly state that the October 2008 revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). As the Veteran filed her original claim in May 2008, only the pre-October 2008 version of the schedular criteria is applicable. She did not specifically request consideration under the new provisions. See 38 C.F.R. § 4.118 (2013). Scars, other than of the head, face, or neck, are to be rated under DCs 7801 to 7805. Under DC 7801, which governs scars, other than the head, face, or neck, that are deep or cause limited motion, a 10 percent evaluation is assignable when the area or areas exceed six square inches (39 square centimeters). A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 square centimeters). 38 C.F.R. § 4.118, DC 7801. 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 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1), (2). Under DC 7802, which governs scars other than the head, face, or neck, that are superficial and do not cause limited motion, a 10 percent evaluation is assignable for area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802. 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 of this part. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2). Under DC 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803. 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. 38 C.F.R. § 4.118, DC 7803, Note (1), (2). Under DC 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804. A superficial scar is one not associated with underlying soft tissue damage. A 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation. (See 38 C.F.R. § 4.68 of this part on the amputation rule.) 38 C.F.R. § 4.118, DC 7804, Note (1), (2). Under DC 7805, other types of scars will be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805. The rating schedule authorizes the assignment of a zero percent (noncompensable) rating in every instance in which the rating schedule does not provide such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2013). The Veteran was afforded a VA general medical examination in July 2008. Review of the service treatment records confirmed that the Veteran had myomectomies performed in November 2006. She had a postoperative keloid scar on her abdomen. It was 12 centimeter (cm) by 2 cm upon clinical observation. It was not painful, nor did it adhere to underlying tissue. The examiner characterized it as stable and superficial. It did not cause additional limitation of motion or function. Private medical records from February 2009 show that the Veteran had a cesarean section. As relevant, the Veteran was noted to have a "very dense" keloid with dense adhesions in the subcutaneous tissue into the fascia. The large keloid scar was partially excised. The Veteran and her baby were stable in recovery. Due to the dense nature of her scarring, the surgeon recommended "serious consideration before pursuing further childbearing secondary to the difficulty of her surgery." In her November 2009 notice of disagreement, the Veteran described having a 6-inch scar with raised keloids one fourth high and one and a half wide. In a July 2010 statement, the Veteran reported that internal scarring was her primary postoperative residual. VA reexamined the Veteran in October 2010. The examiner was unable to review the claims folder, but conducted a clinical examination. It showed that the Veteran had a scar on her abdomen from the umbilicus to the symphysis pubis area. No skin breakdown or pain from the scar was reported. The Veteran recalled that a keloid was removed during her February 2009 cesarean section. The examiner noted that cesarean section records confirmed a dense keloid with adhesions in the subcutaneous tissue into the fasica. Clinical examination showed the scar to be 1.5 cm wide and 15 cm long. It was not painful. No signs of skin breakdown were found; however, the examiner considered it to be deep. The skin had signs of inflammation, edema, or keloid formation. The keloid formation was more present in the superior portion. The examiner described it as thick and elevated. The Veteran had another VA examination for her scar in March 2011. The examiner recited the Veteran's surgical history. Currently, she could lift her child without difficulty. She was in school and did not anticipate that the scar would interfere with future employment. Clinical examination showed a scar from umbilicus down to the pubis. Texture was normal for her skin; however, at the lower end some remaining keloids with a thickened and slightly elevated scar were apparent. She likely had an incisional hernia at the upper end of the incision. The examiner described the scar as 10 cm and very noticeable. However, there was minimal current thickening. She believed the hernia would require surgical repair in the future. The Veteran did not have any current limitation on activity due to the scar. In her April 2011 VA gynecological examination, the examiner also reported on her scar. The Veteran had part of the keloid scar removed during her February 2009 cesarean section and it produced a smoother appearance. Clinical examination showed a healed 13 cm long and 2 cm wide scar with smooth surface with wrinkled and contacted skin along the scar and with an irregular border. The Veteran underwent another VA scar examination in June 2011. Clinical examination showed the scar to be 0.5 cm width and 14 cm length. No skin breakdown or pain was observed. It was deep, but did not have inflammation, edema, or keloid formation. The Veteran is currently in receipt of a 10 percent disability rating for her keloid scar of the abdomen. Ratings in excess of 10 percent for scars not affecting the head, face, or neck are limited. 38 C.F.R. § 4.118, DC 7801-7805 (2008). A rating in excess of 10 percent under DC 7801 or 7802 is not warranted as the Veteran's abdominal scar has never exceeded 12 square inches (77 sq cm) in size. See VA examination reports dated in July 2008, October 2010, March 2011, April 2011, and June 2011. A 10 percent rating is the maximum schedular rating under DCs 7803 and 7804. 38 C.F.R. § 4.118, DCs 7803, 7804 (2008). The record does not show that there was any additional functional impairment to the trunk due to the scar. See VA examination reports from July 2008 and March 2011. In short, the clinical evidence does not present any basis to award a rating in excess of 10 percent. 38 C.F.R. § 4.118, DC 7801-7805 (2008). (Although there was a reference to a possible incisional hernia, this has not been service connected and is not part of the issue over which the Board has jurisdiction.) The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign a higher disability rating for service connected abdominal scar. Residuals of uterine myomectomies The Veteran currently has a noncompensable rating pursuant to Diagnostic Code (DC) 7699-7628 for benign neoplasm of the gynecological system. DC 7628 does not provide rating criteria, but instructs the adjudicator to rate on the basis of the affected part. 38 C.F.R. § 4.116, DC 7628. As discussed below, the Veteran's primary symptom is uterine fibroids observed upon pelvic examination. It is contemplated by DC 7613 for disease, injury, or adhesions to the uterus. 38 C.F.R. § 4.116, DC 7613. DC 7613 is covered by the General Rating Formula for Disease, Injury, or Adhesion of Female Reproductive Organs (General Rating Formula). 38 C.F.R. § 4.116, DC 7613. Under the General Rating Formula, a noncompensable rating is assigned for symptoms that do not require continuous treatment. A 10 percent rating contemplates symptoms requiring continuous treatment. A 30 percent rating covers symptoms not controlled by continuous treatment. Id. The Veteran had a VA gynecology examination in May 2008. The examiner reviewed her service treatment records and noted the pertinent medical history. As relevant, the Veteran had 10 uterine fibroids removed in November 2006. The Veteran had menses every 24-26 days lasting 4 days. She was undergoing infertility treatment. She did not identify any specific gynecological symptom as a current complaint. Clinical examination showed a large abdominal keloid scar. Pelvic examination was mostly normal, except for the uterus. The uterus was slightly enlarged and irregular. No large fibroids or adnexal masses were observed. The examiner diagnosed uterine fibroids, status post multiple myomectomies in November 2006 and infertility. Private medical records from February 2009 show that the Veteran had a successful cesarean section. Notably, the operation report referred to dense adhesion of the uterus. Due to the dense nature of her scarring, the surgeon recommended "serious consideration before pursuing further childbearing secondary to the difficulty of her surgery." VA treatment records from September 2009 show that the Veteran had her annual gynecological examination. She did not have a specific complaint. Clinical examination was grossly normal. She was recommended to follow up in a year. In June 2010, the Veteran asserted that the internal scarring (uterine fibroids) caused her fertility problems. She stated that she was advised not to have another pregnancy. She reiterated her reports in July 2010. In November 2010, the Veteran acknowledged that she did not have pelvic pain or irregular bleeding requiring continuous treatment. She stated that during her cesarean section uterine fibroids were observed. She also noted that she had dense internal scarring from the in-service myomectomies. She currently had weak bladder control and had experienced uncontrolled leakage if a restroom was not in close vicinity. The Veteran had another VA gynecology examination in April 2011. The examiner noted her relevant medical history with particular attention to the February 2009 operation notes. She observed that the Veteran had an intra-abdominal adhesion around the right tube and ovary. The Veteran reported having increased menstrual symptoms of abdominal pain, nausea, and fainting. She had some irregular cycles. Clinical examination of uterus showed it to be slightly enlarged (8 cm) with a fibroid about 2 cm on the anterior lower uterine segment on the left side. It was free of tenderness and mobile. No posterior wall nodularity was observed. The examiner reported that the myomectomy surgery caused adhesion of the uterus to the anterior abdominal wall, bladder, and scarring around the right tube and ovary. She noted that the myomectomy had a negative influence on her February 2009 pregnancy with severe intra-abdominal adhesions. She explained that uterine fibroids are very common and caused the symptoms that the Veteran had during service. During menstrual life cycle, fibroids grow under the effect of the ovarian hormone and shrink upon menopause. She observed that the Veteran still had a few small fibroids. In September 2011, the Veteran revisited the VA gynecology clinic for her annual examination. She was concerned over recent acute pelvic pain lasting two to three minutes. She did not have additional specific complaints. She denied any increase in pressure or urinary incontinence. Clinical examination was normal. The examiner assessed pelvic pain likely due to ovulation. She noted that no fibroid or mass was observed on pelvic examination. Her Pap smear returned normal. During the claims period, uterine abnormalities have been noted on multiple clinical examinations, but they have not caused symptoms necessitating continuous medical treatment. The periodic annual gynecological examinations in September 2009 and September 2011 did not reflect any ongoing gynecological treatment for symptoms related to uterine fibroids or removal residuals. The Board has considered the Veteran's reports from November 2010 that she had bladder control problems. However, she has not identified poor bladder control to treating clinicians and VA examiners in gynecological assessments. (See VA treatment records from September 2009 and September 2011; VA examination reports dated in May 2008 and April 2011). Given the conflicting reports, her November 2010 report alone is not sufficient to show a residual symptom uncontrolled by treatment. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (silence in medical records may be relevant evidence that symptoms were not present if the record would normally have recorded such symptoms); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). There is no indication that bladder problems are in fact residuals of the myomectomies. In short, continuous medical treatment is not shown. The preponderance of the evidence weighs against an initial compensable rating for residuals of uterine myomectomies. 38 C.F.R. § 4.116, DCs 7613, 7628. The Board has considered the Veteran assertions of loss of use of a creative organ. See 38 C.F.R. § 3.350(a)(1); June and July 2010 Veteran reports. Here, the Veteran's service-connected disability is uterine fibroids. She does not have any service-connected ovarian disorder. She successfully gave birth in February 2009. Although she was advised to carefully consider risks from the myomectomy residuals, the physician did not state that future childbearing was wholly impossible due to it. Given the above, the Board does not find that loss of a creative organ is present within the meaning of 38 C.F.R. § 3.350(a)(1). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran, as required by Schafrath, supra. The Board has found no section that provides a basis upon which to assign a higher disability rating for service-connected residuals of uterine myomectomies. Additional rating considerations The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected keloid scar and residuals of uterine myomectomies to be fully contemplated by the rating criteria. The symptoms consist of dermatological abnormalities and abnormal pelvic examination. These symptoms are fully addressed by the rating criteria. The Board finds that the degree of disability experienced by the Veteran is fully contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). The record does not suggest that the Veteran has been unemployed during the claims period due to service-connected disability. (See April 2011 VA examination; September 2011 VA treatment records). She does not otherwise affirmatively assert that her service-connected disabilities at issue preclude gainful employment consistent with her education and occupational experiences. A total disability rating based upon individual unemployability (TDIU) is consequently not for further consideration. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating in excess of 10 percent for keloidal scar of the abdomen, umbilicus to symphysis pubis, is denied. An initial compensable rating for residuals of uterine myomectomies is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs