Citation Nr: 1803429 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-00 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable rating for scars, residuals of abdominal surgeries. 2. Entitlement to an increased rating for residuals of caesarian section (to include scar tissue with lysis of adhesions, abdominal pain, cholecystectomy and irritable bowel syndrome), rated as 10 percent disabling prior to August 1, 2014, 30 percent disabling from that date through January 31, 2017, and 50 percent disabling from February 1, 2017. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to July 2001. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in February 2016. A transcript is of record. The claims were remanded by the Board in July 2016 for additional development. The issue of entitlement to an increased rating for residuals of caesarian section is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. None of the Veteran's abdominal scars are unstable and only the caesarian section or suprapubic scar is painful/tender; a separate 10 percent rating has already been established for the painful scar. 2. The scars are not deep and nonlinear in an area of at least 39 sq. cm, nor superficial and nonlinear in an area of at least 929 sq. cm. 3. Medical evidence shows that the scars do not result in functional limitation distinct from functional impairment already contemplated by separately service-connected muscle impairment and adhesions. CONCLUSION OF LAW The criteria for an initial compensable rating for scars, residuals of abdominal surgeries, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that the action requested in the prior remand has been undertaken. In this regard, the Veteran underwent several VA scars examinations to determine the nature of her surgical abdominal scars and the VA examiner addressed questions raised by the Board in regards to specific manifestations reported by the Veteran. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board acknowledges that the Veteran's representative asserted in the November 2017 post-remand brief that the Veteran's condition has worsened since the last examination and that a new examination is needed. The Board disagrees since the last examination was conducted approximately five months ago in August 2017 and the Veteran denied any specific treatment for symptoms associated with this disability at that time. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The July 2010 rating decision that is the subject of this appeal granted service connection for scars, residuals of abdominal surgeries (associated with residuals from laparoscopic cholecystectomy), and assigned a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7805, effective June 11, 2009. Diagnostic Code 7805 provides the rating criteria for scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804. The criteria indicate that any disabling effects not considered in a rating provided under diagnostic codes 7800-7804 should be evaluated under an appropriate diagnostic code. In an August 2010 VA Form 21-4138, the Veteran reported severe, painful scarring related to multiple surgeries. The Veteran testified in February 2016 that she had a tender scar; that it was painful and adhering to underlying organs; and that scars were causing problems with movement and bending. In addition to the Veteran's statements in support of her claim, the evidence of record includes private treatment records and several VA examination reports. The Veteran underwent a VA examination in December 2009, during which an approximately 20 centimeter well-healed scar along her lower abdomen and pelvic area (which she stated had been the entry site for many of her surgical interventions) was noted. A small scar at the lower aspect of her umbilicus was also noted. The Veteran underwent a VA examination in June 2010. It was noted that the scar was not painful and that there was no ulceration. The caesarian section scar measured 20 centimeters by 0.1 centimeters. There was a scar inferior to the umbilicus, which measured 2 centimeters by 0.3 centimeters and a scar in the right upper quadrant, which measured 0.7 centimeters by 0.2 centimeters. These scars were nontender with normal texture, stable, superficial, and without elevation or depression. There was no inflammation, edema, keloid formation, induration, inflexibility, or limitation of motion or function caused by the scars. During a March 2011 VA examination, the Veteran described a lumpy area along the scar secondary to scar tissue. Physical examination revealed a caesarian section scar measuring 20 centimeters by 0.1 centimeters. The scar itself was nontender and had normal adherence and texture. The scar was stable, was neither elevated nor depressed, and it was superficial. There was no inflammation, edema, keloid formation, or limitation of motion or function caused by the scar. There was an area on the left aspect of the scar with palpable scar tissue inferior to the scar, but it was not related to the scar itself. The Board remanded the claim in July 2016 in order to schedule the Veteran for a VA scars examination to determine the nature of her surgical abdominal scars and for the examiner to indicate whether any of the Veteran's abdominal scars were adherent to underlying tissue, whether any of the scars were tender, and whether the described pulling pain reported by the Veteran was associated with the surgical scars or with the internal adhesions from surgery. During an August 2016 scars Disability Benefits Questionnaire (DBQ), the caesarian section scar located in at the lower abdominal wall was noted to be painful, but not unstable with frequent loss of covering of skin over the scar. It measured six centimeters, was linear, and did not result in limitation of function. The examiner who conducted a January 2017 peritoneal adhesions DBQ reported that the caesarian section residual scar measured 19 centimeters by .02 centimeters and was not painful or unstable. In the medical opinion section, however, the examiner noted pain along the residual caesarian section scar during palpation. The Veteran underwent another scars DBQ in March 2017. Four linear scars located on the anterior trunk were reported by the examiner. A suprapubic scar measured 22 centimeters and was noted to be painful and tender to palpation. The pain was described by the Veteran as a pain that "pulls, tugs, stabs." There were also scars on the left and right lateral abdomen, each measuring two centimeters, and one scar superior to the umbilicus measuring one centimeter; none of these scars were painful. The examiner also indicated that none of the scars were unstable with frequent loss of covering of skin over the scar and that none resulted in limitation of function. The Veteran underwent a third scars DBQ in August 2017, during which she reported numbness and tingling at the region surrounding the scar (umbilicus to pubis). She also noted stabbing and a pulling pain when the scar was touched (e.g., pants rub across it). The Veteran denied any specific treatment for her symptoms. The examiner reported five linear scars - one suprapubic scar measuring 18 centimeters that was tender to palpation; two scars status post JP drains and two scars status post laparoscopy, all measuring once centimeter. None were unstable with frequent loss of covering of skin over the scar and none resulted in limitation of function. Only the suprapubic scar was painful. In the remarks section, the examiner reported that the Veteran's suprapubic scar is at least as likely as not adherent to underlying tissue. The examiner explained that during examination, palpation of this scar and surrounding tissues resulted in deep and referred pain symptoms and internal pulling sensations diffusely. The examiner also indicated that the scar itself was tender with light touch stimulation, with some numbness at its periphery. The examiner noted that the Veteran likely has extensive abdominal adhesions, which contribute to the pain and pulling sensations she experiences during certain movements of her trunk (e.g., bending over at the waist, extending or laterally flexing her lumbar spine, etc.), and noted that these would be separate circumstances from the similar symptoms experienced with stimulation of the lower abdominal scar. The preponderance of the evidence of record is against the assignment of an initial compensable rating for the service-connected scars, residuals of abdominal surgeries, under Diagnostic Code 7805. This is so because the examiners who conducted the June 2010, March 2011, August 2016, March 2017, and August 2017 VA examinations specifically determined that none of the noted scars caused limitation of function. In addition, when specifically addressing the Board's questions as to whether any of the Veteran's abdominal scars were adherent to underlying tissue and whether the described pulling pain reported by the Veteran was associated with any of the surgical scars, the August 2017 VA examiner explained that while the suprapubic scar is at least as likely as not adherent to underlying tissue, it was the abdominal adhesions that contributed to the Veteran's pain and pulling sensations and that these manifestations are separate from symptoms of tenderness and numbness on the scar itself. In other words, the functional limitations reported by the Veteran (adherence to underlying tissue, pain, and a pulling sensation) are due not to the suprapubic abdominal scar, but to the separately service-connected muscle impairment and adhesions, which contemplate the functional limitations reported by the Veteran. See 38 C.F.R. § 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Board has considered the other diagnostic criteria related to scars to determine whether an initial compensable rating is warranted for the service-connected scars, residuals of abdominal surgeries, under these provisions. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 7800 is not for application because the scars are not located on the head, face or neck. The remaining diagnostic codes specifically contemplate scars not of the head, face or neck. Diagnostic Code 7801 provides for a 10 percent rating when deep and nonlinear scars cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 20 percent rating when deep and nonlinear scars cover 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 rating when deep and nonlinear scars cover an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), and a 40 percent rating when deep and nonlinear scars cover an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) stipulates that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 provides for a 10 percent rating for scars that are superficial and nonlinear and cover an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) stipulates that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides for the assignment of a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. In this case, the Veteran was assigned a separate 10 percent evaluation under Diagnostic Code 7804 for painful scar. See December 2016 rating decision. The Veteran has not appealed the assignment of this separate rating and the issue of whether she is entitled to an initial rating in excess of 10 percent for the painful scar is not before the Board; however, the Board must consider whether a compensable rating is warranted under Diagnostic Code 7804 for the remaining scars that are part of the service-connected scars, residuals of abdominal surgeries. It finds that a compensable rating is not for application in this case because only the caesarian section/suprapubic scar, to which the separate 10 percent rating has been applied, has been noted to be painful. The four other scars located on the Veteran's abdomen were not reported as painful or tender by either the Veteran or any VA examiner; and none of the scars have been found to be unstable on VA examination. In the absence of evidence that any of the scars on the Veteran's abdomen other than the caesarian section or suprapubic scar are unstable or painful/tender, the assignment of a compensable rating under Diagnostic Code 7804 is not warranted. Compensable ratings under Diagnostic Codes 7801 and 7802 are not for application because none of the Veteran's scars have been described as deep and nonlinear covering an area or areas of at least 72 square inches (465 sq. cm.); or as superficial and nonlinear covering an area or areas of at least 144 square inches (929 sq. cm.), respectively. Rather, all of the Veteran's scars have been described as linear. In sum, the preponderance of the evidence supports the currently assigned non-compensable rating for scars, residuals of abdominal surgeries. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER An initial compensable rating for scars, residuals of abdominal surgeries, is denied. REMAND The RO issued a supplemental statement of the case in September 2017 that did not address the issue of entitlement to an increased rating for residuals of caesarian section. As pertinent evidence was added to the record after the most recent supplemental statement of the case that addressed this claim was issued in May 2016, this was an oversight on the RO's part and must be rectified on remand. Accordingly, the case is REMANDED for the following action: After undertaking any additional development deemed necessary, the Veteran's claim for an increased rating for residuals of caesarian section to include scar tissue with lysis of adhesions, abdominal pain, cholecystectomy and irritable bowel syndrome) should be readjudicated with consideration of all evidence received since the May 2016 supplemental statement of the case was issued. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs