Citation Nr: 21021458 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 576A DATE: April 13, 2021 ORDER Entitlement to an initial compensable disability rating for scars due to laparoscopic hysterectomy is denied. FINDING OF FACT The Veteran’s two superficial linear scars due to laparoscopic hysterectomy are linear and measure two centimeters and one centimeter; these two scars are neither painful nor productive of functional impairment. CONCLUSION OF LAW The criteria for an initial compensable disability rating for scars due to a laparoscopic hysterectomy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7801-05. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1984 to May 1991. In October 2018, the Board remanded the instant issue for a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 240 (1999). A review of the record shows that the Regional Office (RO) issued that SOC on April 13, 2020. As such, the Board finds that the RO has substantially complied with the October 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Disability Ratings The Veteran assets that the noncompensable rating assigned to service-connected scars due to a laparoscopic hysterectomy do not contemplate the severity of this disability. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings are not warranted. The rating criteria for scars were revised effective August 30, 2002 and again, effective October 23, 2008. However, the latter revisions are applicable only to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). Such would apply to this Veteran, Under Diagnostic Code 7804, scars which are superficial and painful on examination are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7804. Note 1 to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Under other pertinent diagnostic codes, Diagnostic Code 7801 permits a 10 percent rating for scars other than of the head, face, or neck, that are deep or that cause limitation of motion, if they have an area or areas exceeding 6 square inches (39 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7802, scars other than of the head, face, or neck, that are superficial and that do not cause limited motion warrant a 10 percent rating if they have area or areas exceeding 144 square inches (929 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 provided that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Upon a December 2014 VA gynecological conditions examination, a VA clinician indicated that the Veteran had two superficial non-tender linear scars in the umbilical area due to laparoscopic surgery. The first scar measured two centimeters and the second scar measured one centimeter. This clinician did not indicate that either scar was painful and/or unstable and the total scar area was not greater than 39 square centimeters. The clinician did not indicate that these two scars functionally impacted the Veteran in any way. Upon review of the Veteran’s subsequent VA treatment records, clinician did not report complaints or treatment for either of these two linear scars. The Veteran asserted that her two scars due to a laparoscopic hysterectomy were more severe than that which is contemplated by a noncompensable disability rating. Indeed, the Veteran is competent to report discernable symptoms (such as pain); however, the Veteran does not have the medical training to offer a competent opinion as to the clinical severity of a scar disability. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998). As such, this lay evidence does not constitute competent medical evidence. Upon review of the record, neither the Veteran nor her agent submitted any competent evidence to support the assertion that the two scars due to a laparoscopic hysterectomy were of a such severity to warrant a compensable disability rating. Here, the Board informs the Veteran and reminds her agent that “the duty to assist is not a one-way street. If an appellant wishes help in developing her claim, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board assigns significant probative weight to the findings of the December 2014 VA clinician. Upon examination, this competent medical professional indicated two non-tender linear scars in the umbilical area due to laparoscopic surgery—one scar measured two centimeters and the other scar measured one centimeter. Neither scar was painful and/or unstable. As noted above, to receive a compensable disability, there would need to be a showing that one scar is painful. Such is not disclosed in the competent evidence of record. Also, the Board notes that there are no findings in the evidence of record that suggest that either (or both) of these two scars functionally impacts the Veteran in any way, to include use of her umbilical area. An examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran’s disability. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007). Here, the Board notes that the Veteran and her agent have not even provided lay accounts as to the specificities of the worsening in severity of the two non-tender linear scars in the umbilical area due to laparoscopic surgery, Consequently, the Board finds that the compensable disability rating is not warranted for the Veteran’s scars due to a laparoscopic hysterectomy, and the claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.