Citation Nr: 21042269 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 20-28 526 DATE: July 12, 2021 ORDER Entitlement to an initial rating higher than 10 percent for a service-connected kidney removal scar is denied. FINDING OF FACT The most probative evidence of record indicates that the Veteran's kidney removal scar does not limit function and is painful, but not unstable. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for a kidney removal scar are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1960 to February 1964. This matter is on appeal from a December 2017 rating decision. In October 2018, this matter was remanded by the Board for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). In May 2020, a SOC was issued and the Veteran submitted a VA Form 9 as to this issue in July 2020. In January 2021, the Veteran testified at a Virtual Hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In February 2021, this matter was remanded by the Board for further development. It is now ready for adjudication. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Scar In evaluating skin and scar residuals, the Board notes that effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Disabilities of this nature are rated under disfigurement to the head, face, and neck (DC 7800), scars (DC 7801-7805) or dermatitis (DC 7806), whichever is the most predominant. The scar regulations were revised effective August 13, 2018 and these new regulations apply to claims that were pending on August 13, 2018 (as here), if the new regulations are more favorable to the Veteran's case. Thus, the Board will discuss both the old and new scar regulations and apply the more favorable criteria to the Veteran's claim where appropriate. 38 C.F.R. § 4.118, Codes 7800-05. A review of the newly revised rating criteria for scars shows that only Codes 7801 and 7802 were revised. However, as none of the VA examinations or post-service treatment records show that the Veteran's scar is deep and nonlinear; associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 sq. cm.); superficial and nonlinear; and is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater, Diagnostic Codes 7801 and 7802 are inapplicable and do not warrant the assignment of a separate or higher rating for the scar. 38 C.F.R. § 4.118, DCs 7801 and 7802 (in effect before and after August 13, 2018). The rating criteria under Codes 7800, 7804 and 7805 were not changed in the new revisions (only the header of Code 7805 was revised) and applicable to the Veteran's claim. 38 C.F.R. § 4.118. Diagnostic Code 7800 provides ratings for scars of the head, face, or neck and is not applicable in this case as Diagnostic Code 7800 does not provide a rating for a left flank or abdominal scar. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars; or one or two painful or unstable scars with at least one scar being both painful and unstable, warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118. The Veteran contends that his service-connected kidney removal scar is more severe than his 10 percent rating would indicate. The Veteran's kidney removal scar is rated under DC 7804. Procedurally, a December 2017 rating decision granted service connection and assigned a noncompensable rating for a kidney removal scar effective April 30, 2012, under DC 7805. In a May 2020 rating decision the RO found a clear and unmistakable error in the assigned effective date of April 30, 2012, for a kidney removal scar and assigned an effective date of March 14, 2017, the date that service connection for removal of kidney as a residual of kidney cancer was warranted. A May 2021 rating decision increased the rating for the Veteran's kidney removal scar increased the rating from noncompensable (zero percent) to 10 percent, effective March 14, 2017, under DC 7804. However, as this grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Turning to the evidence, on December 2017 VA kidney conditions Disability Benefits Questionnaire (DBQ) examination, the Veteran had a scar on the left abdomen that measured 27 cm. long and .5 cm. wide. The examiner indicated that the scar was not painful or unstable, did not have a total area equal to or greater than 39 sq. (6 sq. inches), and was not located on the head, face, or neck. VA treatment records include a July 2018 report which indicates a complaint of chronic paresthesia inferior of the surgical scar unchanged since the Veteran's kidney removal surgery. The area was approximately the size of the palm of a hand and caused a feeling of burning, tingling, and numbness. In July 2018 the Veteran submitted a photograph of his kidney removal scar. He stated that it was approximately 11.5 inches long or 29 cm. The area below the scar stung, burned, and itched due to nerve damage in an area that was approximately 30 sq. inches. In an August 2018 statement, the Veteran's wife stated that the Veteran had a lot of discomfort from the 11.5 inch scar across his abdomen and a large area below the scar with nerve damage manifested by itching, stinging, and burning. In a September 2018 statement, the Veteran's representative disputed the dimensions of his kidney scar and stated that the correct measurement of the left kidney scar was 27 cm. long and .5 cm wide as confirmed by the photograph. VA treatment records dated in October 2020 report indicate a complaint of some sensation absent in some areas and present in other areas along the left side of the abdomen. In the area around the Veteran's kidney removal incision on the side of his abdomen he complained of some tingling and numbness at times which the physician stated appeared to be related to nerve pain. In January 2021, the Veteran testified that his scar was about 11 inches long and noted that VA had it listed as 10.63 in. by 27 mm. The Veteran complained of itching and burning between the scar up to his chest. A good portion of his stomach itched from an area from 10 to 15 sq. in. to 45 to 50 sq. in. The Veteran complained of pain, tingling and itching. He testified that his clothing did not irritate the scar. In a March 2021 statement, the Veteran stated that he was writing to clear up ongoing confusion about the scar and the area below the scar where his kidney was removed. A short time after the kidney was removed in October 1986, he complained of severe pain and numbness around the scar and a large area below it. Over the years, pain, itching, and numbness lessened in severity, but were still present especially when he was active. Pursuant to the Board's February 2021 remand, on April 2021 VA scars/disfigurement DBQ examination the examiner diagnosed surgical scar, left nephrectomy. The Veteran presented with complaints of pain, itching, and numbness. He stated that he had discomfort in an area about 40 to 50 sq. in. He had pain in different areas along the scar where the nerves were killed with itching, burning, and stinging in the area below the scar. The upper part of the scar was also tender. His symptoms worsened in the heat. The examiner stated that time spent in discussion with the Veteran revealed that his symptoms were not necessarily secondary to the scar, but were related to superficial sensory nerves. The examiner noted that the Veteran had one scar that was painful and tender to touch along the medial 4 to 5 cm and the lateral 5 to 6 cm. However, the scar was not unstable with frequent loss of covering of the skin over the scar. The scar started in the midline upper abdomen and extended laterally toward the flank. The scar measured 27 cm. by .5 cm. There was no underlying tissue damage and the area of the scar was 13.5 cm. sq. The examiner indicated that the Veteran did not have any other pertinent physical findings, complications, condition, signs and/or symptoms associated with any scar or disfigurement of the head, face, or neck. The examiner opined that the Veteran's scar did not impact his ability to work. In a June 2021 statement, the Veteran complained about the accuracy of an April 2021, but it is unclear whether his complaints are related to a VA peripheral nerves examination or scars examination both performed in April 2021. Nonetheless, on review of the April 2021 VA scars examination the Board find that it is adequate for adjudication of the increased rating claim. After review of all the evidence, including VA treatment records and examination, a photograph, statements from the Veteran and his wife, and testimony from the Veteran, the Board does not find that the Veteran is entitled to an initial 20 percent rating for his kidney removal scar. There is no competent evidence to suggest that the Veteran's kidney removal scar is manifested by three or four scars that are unstable or painful scars. In addition, there is no evidence that the kidney removal scar resulted in functional or occupational impairment or limitation of the abdomen or torso. As such, the Board also finds that the preponderance of the evidence is against an initial rating higher than 10 percent, for a kidney removal scar. The Board acknowledges that in the May 2021 rating decision which assigned an initial 10 percent rating for the Veteran's kidney removal scar, the RO found that referral of the claim to the Director of Compensation Service for a possible extraschedular evaluation was not warranted. In this case the Board notes that there has been no argument presented regarding an extraschedular evaluation nor has extraschedular consideration been raised by the record. Accordingly, the Board agrees that referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111, 116 (2008); Chudy v. O'Rourke, 30 Vet. App. 34 (2018). The Board also acknowledges the Veteran's complaints of neurological symptoms associated with the kidney removal scar, including a burning sensation and numbness. However, these complaints were addressed by the RO in the May 2021 rating decision which granted service connection for residuals of kidney surgery, left thoracoabdominal nerves cutaneous branch and assigned a 10 percent rating, effective March 14, 2017, under DC 8599-8520 (paralysis of the sciatic nerve) for neurological symptoms. Additional considerations (Continued on the next page) In this case, the Veteran is competent to report complaints such as pain and itching, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously. He is not, however, competent to identify a specific level of disability of his kidney removal scar according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran's kidney removal scar has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.