Citation Nr: 21002283 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-39 480 DATE: January 13, 2021 ORDER Effective May 25, 2011, entitlement to a 10 percent rating for abdominal scar is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s abdominal scar has been shown to be unstable. CONCLUSION OF LAW Effective May 25, 2011, the criteria for a 10 percent rating for abdominal scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400(o)(2), 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the appeal for further development, including a new VA examination, which was performed in February 2019. In an October 2019 decision, the Board denied the appeal. The Veteran appealed. In a September 2020 Order, the Court of Appeals for Veterans Claims (Court) upheld a joint motion of the parties and remanded the appeal back to the Board for action consistent with the joint motion. Entitlement to a 10 percent rating for abdominal scar. The Veteran contends he is entitled to a ten percent rating for his abdominal scar. Service connection for a single abdominal scar was granted by an August 1995 rating decision. A noncompensable rating was assigned effective April 12, 1995. The decision noted that the scar is a postoperative residual of a laparotomy procedure the Veteran underwent during service. In a claim received on May 25, 2012, the Veteran sought an increased rating. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned ratings under separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more nearly approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of the rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a “General Rating Formula for the Skin” for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Regarding the primary applicable Diagnostic Code in this case, Code 7804, the 2018 revisions did not substantively change the rating criteria. In this regard, under Code 7804, which pertains to unstable or painful scars, a 10 percent evaluation is assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Note (3). The Veteran’s abdominal scar has currently been rated as noncompensable under Diagnostic Code 7805, which evaluates scars based on effects not covered by Diagnostic Codes 7800 to 7804. 38 C.F.R. § 4.118. (However, as explained in the analysis below, the scar is appropriately rated under Code 7804). Diagnostic Code 7800 pertains only to scars of the head, face or neck so is not applicable to the instant appeal. Id. A compensable rating under Diagnostic Code 7801 under both the initial and amended criteria, requires that scars other than the head, face, or neck, are deep and nonlinear and exceed 6 square (sq.) inches (39 sq. cm.). Note (1) of the revised criteria states that a deep scar is one associated with underlying soft tissue damage. A compensable rating under Diagnostic Code 7802 under the initial and revised criteria requires that superficial scars cover an area of 144 sq. inches (929 sq. cm.). Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. At an April 2012 surgical visit with Dr. S. Hanschen, it was noted that the Veteran had surgery during service that involved an unusual type of incision going across the lower part of the abdomen with drain sites on both sides. The Veteran complained of bleeding, particularly at the right drainage site and that he saw small amounts of bright red blood frequently in this area. Physical examination showed that the Veteran had gained a significant amount of weight since service so that there was a significant amount of pannus overlapping the incision area, making for a crease from which it was not uncommon to have small amounts of excoriation and bleeding. The examining surgeon could find nothing that looked like an infection, hernia or other issues. The surgeon noted that the Veteran had a fair amount of thickening in the tissue in the area of his surgery, but this was not a hypertrophic scarring situation or a keloid formation that presented itself externally. In the October 2012 VCAA response, the Veteran stated that his abdominal scar was tearing, bleeding, and painful. He stated that his private treatment provider indicated that the scar attached to the Veteran’s intestines and had a large amount of scar tissue that could not be removed, which was causing the pain. The Veteran stated that he was experiencing severe abdominal pain. In an October 2012 statement, the Veteran’s wife stated that she has observed the Veteran’s scars bleeding, evidenced by the staining of his clothes and undergarments that stick to his skin. She also stated that private physician, Dr. Hanschen, had stated that the scarring was extensive and had attached to the Veteran’s intestines. She stated that the Veteran had sought medical treatment for the drainage, bleeding, and infections of the scar and that he had complained about pain in the area of his drainage scar and bladder incision. The Veteran attended a VA examination in December 2012. The examiner noted that the Veteran underwent a laparotomy in September 1979 and was found to have an infected urachal cyst. There apparently was an intra-abdominal infection and the Veteran had drainage tubes placed in both the right lower and left lower quadrants and a midline tube to the bladder. The examiner indicated that the Veteran had 5 scars from the surgery. There was a long, transverse abdominal scar, an infra umbilical longitudinal scar, and a left lower quadrant scar. All the scars were noted to have healed well. However, the midline lower abdominal drainage scar was deep with a pocket formed in the skin fold and collected fluid but did not get infected. Also, the right lower quadrant scar had formed an open deep pocket, which collected fluid and had to be cleaned daily, with the Veteran reporting that the scar got infected about twice a year, which the Veteran treated himself with 3 times a day with hydrogen peroxide. The Veteran had not required antibiotics. The examiner noted that none of the scars were painful. The scars were also noted not to be unstable. The examiner indicated that the Veteran had 5 linear scars on his anterior trunk, measured as follows: 32 cm x 0.2 cm, 3 cm x 0.2 cm, 6 cm x 0.3 cm, 5 cm x 0.2 cm, and 4 cm x 0.2 cm. The examiner commented that the Veteran also complained of abdominal wall muscle cramps in the region of his previous scar. However, he had been diagnosed with a fasciculation/muscle cramp syndrome and had muscle cramps throughout his body. The examiner indicated that the abdominal wall cramps were part of his fasciculation/muscle cramp syndrome and were less likely than not proximately due to or caused by his service-connected abdominal scar. Additionally, at a December 2012 VA gastrointestinal examination, the examiner found that the Veteran’s crampy abdominal pain was less likely than not proximately due to or the result of his 1979 abdominal surgery in service and his associated scars. At a December 2012 plastic surgery consultation, the Veteran reported concerns of skin irritation of abdominal pannus after surgery in the past. He reported that after healing from his surgery in service, he began having skin infections and bleeding in the areas of his wounds. He indicated that this had been a problem for him for greater than 10 years. He stated that about twice a year, he would get superficial skin infections in the area that he treated with cleaning and creams. He indicated that he had never really had to use antibiotics for this. He noted that he was good about cleaning his wounds daily and that the most bothersome wound was in the right lateral abdominal area. The examining plastic surgeon noted that the Veteran’s medical history was significant for benign fasciculation syndrome. Physical examination showed that the abdominal wall had multiple levels of pannus. There was a central upper level, which was superior to his previous horizontal incision for surgery. The skin in this area was mildly irritated and the incision was small and well-healed. Below, there was a separate, smaller but definable roll of skin and fat with wide striae and thin skin. This was on the right side of the abdomen. It was tethered inferiorly at a point where a drain tube was brought out in the past. The edges were mildly irritated and red with a minor amount of blood staining. There was no hernia below this area. On the left side of the inferior portion of this skin roll, there was another hole where the Veteran’s suprapubic tube was placed. The lateral left abdomen had a small scar where the left drain tube came out. The suprapubic area showed a somewhat separate pannus as well. There was no evidence of skin infection at the inferior position of this wound. There was a small vertical scar 2cm in length, which was inferior to the umbilicus. No masses were palpated and there was no evidence of hernia on examination. The plastic surgeon commented the Veteran had had wound healing problems secondary to abdominal skin following abdominal surgery greater than 20 years previously. He had done a good job of maintaining his wounds up to the present day. He had a firm grasp on how to keep them clean. The surgeon indicated that his problems was quite complex in terms of the abdominal skin. It seemed that in healing by secondary intent his fascia of Scarpa (deep membranous layer of the superficial fascia of the abdomen) separated in multiple areas, causing multiple areas of excess skin. His suprapubic pannus had descended as well. On his June 2013 Notice of Disagreement (NOD) the Veteran indicated that he could not understand why he had not been granted a 10 percent rating for his scars and he requested that a 10 percent rating be granted. He stated that his scars are unstable, cracked, bleeding, discolored, and painful. In a July 2013 private treatment record, the Veteran complained of abdominal pain, cramps, and frequent episodes of diarrhea. He stated that he has been feeling suppression discomfort in the lower part of his abdomen. The medical provider, Dr. Hanschen, stated that the Veteran had an unusual operation that was the transverse suprapubic incision made while in service in 1979. Since this surgery, the medical provider noted that the Veteran has complained of intermittent problems with his lower abdomen. The medical provider stated that the Veteran had hypertrophic scarring associated with this incision. The doctor concluded that with extensive scarring in the subcutaneous areas, it was not uncommon to have the same type of scarring within the abdomen where the surgery was performed. The scarring would affect the tissues surrounding the bladder, including the colon and/or small bowel. Dr. Hanschen stated that it was always difficult to be definitive 34 years after the operation as far as to the determination that this internal scarring might be present versus irritable bowel syndrome versus other GI tract pathology. In the October 2015 substantive appeal, the Veteran asserted that his abdominal scar continued to bleed and was painful. The Veteran stated that he has reported the pain from the scar to his treatment providers. He indicated that Dr. Hanschen had informed him that his scar tissue was causing his irritable bowel syndrome. The Veteran attended a VA examination in February 2019. The examiner identified a lower abdomen transverse surgical scar status post laparotomy. The examiner found that the scar was healed, intact, nontender, with occasional bleeding. The size of the scar was noted as 28 cm x 4 cm. The examiner indicated the scar was not painful, not unstable, not tender to palpation, and there was no underlying soft tissue damage. The examiner noted that the skin over the scar was very thin and that it occasionally would bleed when it rubbed against a hard surface. The Veteran had an abdominal fold due to obesity, had a normal dense layer of fatty tissue, and excess subcutaneous fat. The scar was rubbing against the abdominal fold. There was no bleeding, drainage, excoriation/irritation, or pain noted upon examination; the bleeding symptom was subjective only. The Veteran reported that he did not have pain or tenderness any longer on the surgical site and the scar. The February 2019 examiner considered all the above statements made by the Veteran, his wife, and his private physician Dr. Hanschen. He ultimately opined that the Veteran’s scar was healed and intact, and there was no objective evidence of pain, drainage, or tenderness upon examination. In the September 2020 joint motion, the parties noted that in the October 2019 decision, the Board found that the Veteran did not have an unstable scar. However, in so doing, the Board failed to address the portion of the April 2012 surgery note that documented bleeding into the Veteran’s right drainage site ‘with small amounts of bright red blood frequently in this area.’ Thus, a remand was warranted to address this evidence and explain whether it evidenced an unstable scar, which would warrant a 10 percent rating under Diagnostic Code 7804. In a December 2020 brief, the Veteran’s attorney argued that the Veteran should be granted a 10 percent rating for his residual scars and that this rating should be assigned from April 12, 1995 to the present. The attorney indicated that if the Board did not assign the 10 percent rating, it should remand the appeal for a further medical opinion. A compensable, 10 percent rating for the Veteran’s scar of the abdomen is only available under Code 7801 or 7802, if there is a deep scar that exceeds 6 square inches or superficial scars that cover an area of 144 square inches. The Veteran is not shown to have a deep scar that exceeds 6 square inches or a superficial scar that covers an area of 144 square inches nor has the Veteran or his attorney argued that such a condition is present. In this regard, the December 2012 examination identified a deep scar, but it was not measured to be anywhere near 6 square inches. Also, the Veteran’s superficial scarring has not been shown to measure 144 square inches or more. For example, at the February 2019 examination, the scarring was found to measure only 28 cm by 4 cm (i.e. 112 square centimeters) which is much less than 144 square inches). Accordingly, there is no basis for a compensable rating under Codes 7801 or 7802. However, at the April 2012 private surgical visit, the examining surgeon noted a crease in the area of a single scar from which he found it would not be uncommon to have small amounts of excoriation and bleeding. Also, in the October 2012 statements both the Veteran and his wife asserted that the Veteran experienced bleeding from the scar. Additionally, during the February 2019 examination, the examiner found that the skin over the single scar was very thin and occasionally would bleed when rubbed against a hard surface. Considering all this evidence together and resolving all reasonable doubt in the Veteran’s favor, this evidence suggests that there is frequent loss of covering of skin over this single scar. Accordingly, the Board will assign a 10 percent rating for the Veteran’s scar. The Board notes that this assignment represents a full grant of the rating sought as the Veteran’s attorney specifically requested that a 10 percent rating be assigned in her December 2020 brief and the Veteran also specifically requested that a 10 percent rating be assigned in his June 2013 notice of disagreement. Moreover, the single deficiency in the October 2019 Board denial of an increased rating found by the September 2020 joint motion was that the denial failed to discuss whether the April 2012 surgical report notation of the small right drainage site frequently showing a small amount of bright red blood was indicative of instability of this single scar, which might warrant assignment of a 10 percent rating under Code 7804. This finding is consistent with the Veteran and his attorney’s explicit statements indicating that a 10 percent rating is sought. Regarding the effective date of the 10 percent rating, as noted above, the Veteran’s instant claim for increase was received on May 25, 2012. Additionally, the instability of the scar was shown by medical evidence slightly earlier than this. Given the apparent consistency of the scar’s characteristics and resolving any reasonable doubt in the Veteran’s favor, the Board will assign an effective date of May 25, 2011 for the 10 percent rating. See 38 C.F.R. § 3.400(o)(2) (permitting assignment of an effective date for an increased rating up to one year prior to the date the claim for increase was received, if it is factually ascertainable that the underlying disability met the criteria for the increase at that time). (Continued on the next page)   There is no basis in the record for assigning an effective date prior to May 25, 2011, including the effective date of April 12, 1995 requested by the Veteran’s attorney, as there was no claim for increase received prior to May 25, 2012 and as the Veteran did not appeal the initial noncompensable rating assigned for the scar by the August 1995 rating decision, making that decision final. See also 38 U.S.C. § 7105. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.