Citation Nr: 18160039 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-63 305 DATE: December 21, 2018 ORDER Entitlement to an initial rating of 10 percent, but no higher, for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence, prior to July 2, 2015, is granted. Entitlement to a rating in excess of 10 percent for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence is denied. REFERRED ISSUE The Board’s review of this case reflects that at the time of the Veteran’s last surgery with respect to his residuals of prostatectomy, a bladder sling was surgically inserted to reduce his problems with incontinence. Therefore, as the sling could be considered a required appliance to correct the Veteran’s service-connected voiding problem, the Board is referring a claim for an increase in the current 20 percent rating under 38 C.F.R. § 4.115a, Diagnostic Code 7527 to the Regional Office (RO) for appropriate adjudication. FINDING OF FACT For the entire period on appeal, the Veteran’s residual prostatectomy scar has been painful, measures 4 centimeters, and is not deep, superficial or nonlinear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 10 percent, but no higher, for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence, prior to July 2, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.118, Diagnostic Codes (DC) 7800, 7801, 7802, 7804. 2. The criteria for a rating in excess of 10 percent for the entire period on appeal for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.118, Diagnostic Codes (DC) 7800, 7801, 7802, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1968 to February 1971, to include service in the Republic of Vietnam. The Veteran and K.B. testified before the undersigned Veterans Law Judge at a May 2018 videoconference hearing. A transcript of that hearing has been associated with the record. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2016). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran and his representative have asserted that the Veteran is entitled to an initial compensable rating for his residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence prior to July 2, 2015, and in excess of 10 percent thereafter. 1. Entitlement to an initial compensable rating for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence, prior to July 2, 2015. Prior to July 2, 2015, the Veteran’s service-connected scar residuals were rated under Diagnostic Code 7802 and the Veteran was assigned an initial noncompensable rating. Under Diagnostic Code 7802, a scar at a location other than the head, face, or neck that is superficial and nonlinear is assigned a 10 percent rating if it covers an area or areas exceeding 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. See, 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1). Pursuant to Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See, 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, (Note 3). Pursuant to Diagnostic Code 7805, disabling effects not considered in a rating provided under Diagnostic Codes 7800, 7801, 7802, and 7804 are to be rated under an appropriate diagnostic code. See, 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran was first afforded a VA examination in February 2013 to evaluate the residuals of his prostatectomy. During this examination, it was noted that the Veteran had one residual scar, but it was not painful and/or unstable and was not greater than 39 square centimeters. See, February 2013 VA examination. The Veteran had an additional VA examination in May 2014, where it was indicated that the Veteran did not have a scar related to his prostate cancer. However, as the Veteran’s medical record is inconsistent with the May 2014 VA examiner’s finding that the Veteran did not have a scar related to his prostatectomy, the Board has afforded this opinion with low probative value. Following the Veteran’s May 2014 VA examination, the Veteran was examined again for a prostate cancer Disability Benefits Questionnaire (DBQ) in June 2014. During this examination, it was indicated that the Veteran did have a residual surgical scar from the procedure, but it was not indicated to be painful. See, June 2014 DBQ. Following the June 2014 DBQ, the Veteran had a follow-up procedure related to his prostatectomy in December 2014. Following the second procedure, the Veteran indicated that he continued to have pain from the scarring and that medication for the pain did not work. See, post-service treatment records dated December 2014, October 2016. During the Veteran’s May 2018 sworn testimony, the Veteran and his witness stated that his scars have been uncomfortable since his original prostatectomy surgery in January 2013. Specifically, the Veteran indicated that it’s uncomfortable and tender, especially when he is sitting. See, May 2018 videoconference hearing transcript. As stated above, the Board notes that the Veteran was rated under Diagnostic Code 7802 prior to July 2, 2015. With respect to Diagnostic Code 7802, the objective evidence does not support a compensable evaluation. The Veteran’s scar was indicated to be linear and 6 centimeters. As noted above, a 929 square centimeter scar is required for a 10 percent rating. However, the Board finds that Diagnostic Code 7804 is more applicable to appropriately rate the Veteran’s residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence. Specifically, the Board notes that the Veteran and K.B. have provided competent testimony indicating that the Veteran’s scar has been tender and painful since undergoing the original prostatectomy in January 2013. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Accordingly, the Board finds that the Veteran’s residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence has been painful since the original prostatectomy in January 2013 and therefore, the Veteran is entitled to a rating of 10 percent, but no higher, prior to July 2, 2015. 2. Entitlement to a rating in excess of 10 percent for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence for the entire period on appeal Beginning July 2, 2015, the Veteran’s residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence was rated as 10 percent disabling under Diagnostic Code 7804 for one painful scar. The Veteran was most recently evaluated for his Veteran’s residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence in November 2016. During this examination, it was indicated that the Veteran had one painful scar associated with this prostatectomy in January 2013. The scar was noted to be linear, tender, stable, well-healed and measured 4 centimeters. There were no other scars indicated during the examination. See, November 2016 VA examination. As outlined above, the Board notes that in order to be entitled to a rating of 20 percent, the evidence must show that the Veteran has three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. See, 38 C.F.R. § 4.118, Diagnostic Code 7804. As the Veteran’s VA examinations and post-service treatment records indicate that the Veteran only has one scar that is painful, a rating in excess of 10 percent is not warranted, as the preponderance of the evidence is against a finding of three or four scars that are unstable or painful. As Diagnostic Codes 7800 and 7801 only pertain to scars that are not of the head, face, or neck, those provisions are inapplicable and do not support a rating in excess of 10 percent at any time during the course of the appeal. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801. As discussed above, under Diagnostic Code 7802, the Veteran would only be entitled to a noncompensable rating and the Board has determined that Diagnostic Code 7804 is more appropriate. Finally, as there is no indication of any other disabling effects that would warrant evaluation under an appropriate diagnostic code, an increased rating under Diagnostic Code 7805 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Specifically, the examination reports provide that aside from the Veteran’s subjective reports of pain and discomfort, there are no other pertinent symptoms associated with his scar, such as instability. In addition, as was noted previously, the Veteran’s problem with leakage is currently being separately compensated and entitlement to an increased rating for this aspect of his disorder is being referred to the RO for further adjudication. Accordingly, based on the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent for the period on appeal for residual prostatectomy scar as secondary to service-connected prostate cancer with stress urinary incontinence and therefore, the claim is denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel