Citation Nr: 1619482 Decision Date: 05/13/16 Archive Date: 05/19/16 DOCKET NO. 10-05 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable evaluation for splenectomy and incisional hernia repair scars. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had honorable active duty service from August 1976 to August 1979 with a subsequent period of less than honorable service from August 1979 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for splenectomy and incisional hernia repair scars and assigned a noncompensable evaluation, effective August 21, 2007. The Veteran filed a timely notice of disagreement as to the initially assigned noncompensable evaluation. In August 2013, the Board remanded the Veteran's claim. The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the record maintained in the Veteran's Virtual VA paperless claims processing system folder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran credibly reports that his splenectomy and incisional hernia repair scars are tender and painful; the Veteran's splenectomy and incisional hernia repair scars are stable, linear, do not measure greater than 6 square inches (39 sq. cm.), and have no limited function. CONCLUSION OF LAW The criteria for a 10 percent disability rating, and no higher, for splenectomy and incisional hernia repair scars have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7804 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to an initial compensable rating for splenectomy and incisional hernia repair scars. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2014)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that he/she is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Further, the United States Court of Appeals for Veterans Claims (Court) has 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 Court also explained that proper notification must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Court has also held, however, that VCAA notice is not required under circumstances where a claim for service connection is granted, a rating and an effective date are assigned, and the claimant files an appeal as to the evaluation assigned to that grant. See Dingess v. Nicholson, 19 Vet. App. at 491 (in which the Court held that, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application. Id. Here, the Veteran's claim for an increased rating for his service-connected splenectomy and incisional hernia repair scars essentially fall within this fact pattern. Prior to the RO's July 2009 grant of service connection for this disability, the Veteran was notified (by a September 2007 letter) of the evidence needed to establish that underlying issue. After receiving notice of the award of service connection for this disability here at issue, the Veteran perfected a timely appeal with respect to the rating initially assigned to the grant. Clearly, no further section 5103(a) notice is required for this increased rating claim. As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the Veteran has been provided with various communications [including the notice of the July 2009 rating decision, the January 2010 statement of the case (SOC), and an October 2013 supplemental statement of the case (SSOC)] that contain notice of VA's rating criteria, his appellate rights, a summary of relevant evidence, citations to applicable law, and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. No further due process development of notification of this increased rating claim is required. As alluded to above, in August 2013, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to obtain outstanding VA treatment records and provide the Veteran with a VA examination for his splenectomy and incisional hernia repair scars. Pursuant to the Board's remand instructions, outstanding VA treatment records have been obtained and associated with the Veteran's claims folder. Also, the Veteran was afforded a VA examination for his splenectomy and incisional hernia repair scars and a report of the examination was associated with the claims folder. His claim was readjudicated via the October 2013 SSOC. Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating this claim. The pertinent evidence of record includes statements from the Veteran, service treatment records, as well as VA treatment records. Also, the Veteran was afforded a VA examination in October 2013. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, the examination report contains sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Under these circumstances, the Board finds that VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. Additionally, the Board observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative, who has received all appropriate notifications. Accordingly, the Board will proceed to a decision. Higher evaluation for splenectomy and incisional hernia repair scars The Veteran essentially contends that a review of the objective medical evidence shows that his service-connected splenectomy and incisional hernia repair scars are worse than the initial noncompensable evaluation indicates. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2015). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2015). The applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended, effective August 30, 2002 [see 67 Fed. Reg. 49490-99 (July 31, 2002)] and again in October 2008. The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the RO received the Veteran's initial service connection claim for splenectomy and incisional hernia repair scars in April 2007. Therefore, the post-2002 and pre-October 2008 schedular criteria is applicable. Rating criteria for scars addressed under this section are found in Diagnostic Codes 7800 through 7806. Initially, the Board observes that Diagnostic Code 7800 is not applicable in this case. Diagnostic Code 7800 provides criteria for evaluation of scars causing disfigurement of the head, face, or neck, and not the splenectomy and incisional hernia repair scars as is the case here. The Board further notes that the Veteran is not service-connected for dermatitis or eczema nor does the record indicate that he has the type of scarring that would warrant consideration on this basis. Thus, consideration of Diagnostic Code 7806 is not warranted in this case. Diagnostic Code 7801 directs that scars other than on the head, face, or neck that are deep or cause limited motion are evaluated as 10 percent disabling for areas exceeding 6 square inches, 20 percent disabling for areas exceeding 12 square inches, 30 percent disabling for areas exceeding 72 square inches, and 40 percent disabling for areas exceeding 144 square inches. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2008). Diagnostic Code 7802 provides that scars other than head, face, or neck scars that are superficial and do not cause limited motion will be rated as 10 percent disabling for areas of 144 square inches or greater. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2008). Diagnostic Code 7803 provides a 10 percent evaluation for superficial and unstable scars. An unstable scar is specifically defined by Diagnostic Code 7803 as one "where, for any reason, there is frequent loss of covering of skin over the scar." Under Diagnostic Code 7804, a maximum 10 percent rating is warranted for scars that are superficial and painful on examination. A superficial scar is one not associated with underlying soft tissue damage. Finally, Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. 38 C.F.R. Part 4 (2008). Historically, the Veteran underwent a splenectomy in 1991. He developed a small hernia along the healed incision line approximately one year thereafter. An August 2008, VA surgical consultation showed left abdominal incisional and small umbilical hernias. At that time, the hernias did not "hurt" and were easily reducible, however, it was noted that they interfered with the Veteran's normal function because he was guarded about injury. The Veteran underwent surgical repair of his hernias on October 8, 2008. A pre-procedure assessment on that date showed that the Veteran denied pain. A 5 mm umbilical hernia was repaired with a small ventralex patch and a 3 cm. X 2cm. ventral hernia was repaired with a 6.4 cm. X 2.5 cm. ventralex patch. On follow-up approximately two weeks later, the Veteran reportedly experienced pain in the area of the surgical repair on sneezing. Physical examination showed well healed surgical incisions with no signs of infection or recurrent hernias. In December 2008, the Veteran was afforded VA scars and digestive conditions examinations to determine the nature and etiology of his incisional and umbilical hernias and for evaluation of any associated scars. He complained of occasional discomfort in the area of the scars. The examiner diagnosed status-post splenectomy with residual scar; status-post incisional hernia repair with residual scar; and status-post umbilical hernia repair with residual scar. The only significant findings on physical evaluation of the Veteran's surgical scars were that the color and texture of the scars was inconsistent with surrounding tissues. Otherwise, the scars were found to be stable, non-painful, non-adherent to underlying tissues, and superficial without underlying soft tissue damage. There was no elevated or depressed surface contour on palpation, inflammation, edema, or keloid formation. The examiner found that there was no limitation of motion or function caused by the scars. Significantly, however, the examination report states that no diagnostic or clinical tests were performed. In a March 2010 statement, the Veteran's representative indicated that the Veteran experiences daily pain and discomfort in the area of his splenectomy and incisional hernia repair scars, which sometimes limits his daily functioning. The Veteran was provided another VA examination in October 2013. The VA examiner documented his splenectomy scar. He reported that the scar was not unstable or painful and measured 27.2 cm X 1.2. Further, the scar was not deep and non-linear and did not result in limitation of function. However, the Veteran had a slight tenderness around the mid-epigastric midline vertical scar located 8 cm. above the umbilicus. The Veteran further reported that he had a sharp pain beneath the mid epigastric scar when lifting heavy objects. The examiner also noted that no umbilical or ventral hernia was detected, and there was no indication for a supporting belt. He further reported that the hernia scars were not painful and/or unstable, and the total area of the scars was not greater than 39 sq. cm. The examiner again noted the Veteran's report of tenderness around the mid epigastric midline vertical scar located 8 cm. above the umbilicus. The scar was superficial with no adhesion to underlying skin. Based on review of the evidence, the Board initially notes that a compensable disability rating is not warranted under Diagnostic Code 7801. In this regard, the competent and probative evidence, to include the VA examinations and VA treatment records, indicate that the Veteran's splenectomy and incisional hernia repair scars are not deep, do not cause limited motion, and do not have an area exceeding 39 sq. cm. On the contrary, the evidence documents the Veteran's scars as superficial with no underlying soft tissue damage, and the splenectomy scar in particular measured only 27.2 cm. by 1.2 cm. Moreover, the October 2013 VA examiner specifically noted that the hernia scars did not measure greater than 39 sq. cm. and there is no evidence to the contrary. The Board further notes that a compensable disability rating is not warranted under Diagnostic Code 7802. As indicated above, the Veteran's scars do not measure 144 square inches or greater. Likewise, a compensable disability rating is not warranted under Diagnostic Code 7803 as there is no evidence that the Veteran's scars are unstable. On the contrary, the Veteran's scars have primarily been reported as superficial. Further, a compensable rating is not warranted under Diagnostic Code 7805. While the Board notes the August 2008 VA treatment record that the hernias interfered with the Veteran's normal function because he was guarded about injury and the March 2010 statement that his scars sometimes limits his daily functioning, the remainder of the competent and probative evidence, in particular the October 2013 VA examination, documents the Veteran's scars as not causing limitation of motion or function. The Board places great probative value on the October 2013 VA examination report in particular as it was based on thorough examination of the Veteran. However, the Board finds that the Veteran is entitled to a 10 percent disability rating under Diagnostic Code 7804. In this regard, the Board notes the Veteran's multiple statements of record indicating that his splenectomy and incisional hernia scars are painful. Although the Board notes the VA examiners' notations that the Veteran's scars are not painful, the Veteran reported at the October 2013 VA examination that his scars are tender. Moreover, the Board notes the October 2008 VA treatment record noting the Veteran's experience of pain in the area of the surgical repair when sneezing. Also, at the December 2008 VA examination, he complained of occasional discomfort in the area of the scars. Further, in his March 2010 statement, the Veteran's representative indicated that the Veteran experiences daily pain and discomfort in the area of his splenectomy and incisional hernia repair scars. The Board notes that the Veteran is competent to state that his scars are tender and painful, and finds him credible with regard to this report of symptoms. Accordingly, a 10 percent disability rating is warranted for the Veteran's splenectomy and incisional hernia repair scars. As indicated above, during the pendency of the Veteran's appeal, the regulations pertaining to the evaluation of skin disabilities were amended. See 73 Fed. Reg. 54708 (effective Sept. 23, 2008). As the RO considered these criteria in the January 2010 statement of the case, so as not to prejudice the Veteran, the Board will also consider whether the Veteran is entitled to higher ratings under these criteria. The changes with respect to Diagnostic Code 7800 pertaining to burn scars, scars, or other disfigurement of the head, face, or neck are not applicable here. Pursuant to Diagnostic Code 7801, scars not of the head, face or neck that are deep and nonlinear and are at least 6 square inches (39 sq. cm.) warrants a 10 percent rating. A 20 percent disability rating is warranted for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent disability rating for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). As documented above, the Veteran's scar measurements would not afford him a higher disability rating for the splenectomy and incisional hernia repair scars under these criteria. Diagnostic Code 7802 only offers a maximum 10 percent disability rating and is therefore not applicable. Diagnostic Code 7804 provides a rating of 10 percent for one or two scars that are unstable or painful. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. In this case, the Veteran does not have three or four scars that are unstable or painful and would therefore not be entitled to a higher disability rating under this Diagnostic Code. Diagnostic Codes 7803 and 7805 were removed. Thus, in this case, the new criteria are not more favorable. In sum, the Board finds that an initial 10 percent disability rating, and no higher, is warranted for the Veteran's splenectomy and incisional hernia repair scars for the entire period under consideration. Fenderson, supra. The Board has considered whether referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is indicated. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed. Cir. 2009). If the criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun, Id. Here, the rating criteria reasonably describe and assess the Veteran's disability levels and symptomatology pertaining to the splenectomy and incisional hernia repair scars. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability during the appeal period. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced. However, this is not an exceptional circumstance. Thus, no basis for referring the case for an extraschedular consideration is presented in this case. Finally, the evidence does not reflect that the Veteran's splenectomy and incisional hernia repair scars preclude the Veteran from obtaining substantial gainful employment. Consequently, there is no implicit claim for a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). ORDER Entitlement to a 10 percent disability rating for splenectomy and incisional hernia repair scars is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs