Citation Nr: 21042509 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-38 799 DATE: July 13, 2021 ORDER A disability rating in excess of 10 percent for a service-connected cesarean section (C-section) scar is denied. REMANDED Entitlement to service connection for residuals of right eye surgery is remanded. Entitlement to service connection for a gynecological disorder is remanded. Entitlement to service connection for a disability manifested by acid reflux is remanded. Entitlement to service connection for bilateral foot disabilities is remanded. FINDING OF FACT The Veteran has one c-section scar in the lower abdomen that is painful but not unstable. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a service-connected cesarean section (C-section) scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to February 1978. In April 2020, the Board denied the above service connection issues, which the Veteran appealed to the Court of Appeal for Veteran's Claims (Court). In a February 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's April 2020 denial of the Veteran's service connection claims for residuals of right eye surgery, a gynecological disorder, a disability manifested by acid reflux, and bilateral foot disabilities and remanded these matters to the Board for additional development. These issues have since returned to the Board for appellate review. With respect to the Veteran's increased rating claim for her c-section scar, in April 2020, the Board remanded this issue to obtain a new VA examination, which the Veteran underwent in July 2020. The Board is therefore satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran's c-section scar. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran's c-section scar has been consistent throughout the appeal period. 1. A disability rating in excess of 10 percent for a service-connected cesarean section (C-section) scar is denied. The Veteran is in receipt of a 10 percent rating for her c-section scar under DC 7804 for scars that are unstable or painful. The Board notes that regulations pertaining to skin disabilities were recently amended and new criteria for rating skin disabilities became effective on August 13, 2018. Id. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the veteran will apply. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states 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 if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. With respect to other disability ratings related to the skin, the pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801. In contrast, the amended DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805. Under the old criteria, DC 7806 provided for a noncompensable rating where there is less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned where there is involvement of at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. Under the current criteria for DC 7806, a noncompensable rating is assigned when there is no more than topical therapy required over the past 12-month period and characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for characteristic lesions involving at least five percent but less than 20 percent of the entire body affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month. A 30 percent rating is assigned for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy retinoids, biologics, photochemotherapy, (psoralen with long-wave ultraviolet-A light (PUVA) or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118. The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin." 38 C.F.R. § 4.118(a). Analysis Turning to the relevant evidence, aside from the VA examinations, the Veteran's VA or private treatment records do not indicate treatment or complaints of the Veteran's c-section scar during the appeal period. In the December 2014 VA examination for gynecological conditions, the examiner noted that the Veteran reported intermittent pain in her c-section scar. However, the examiner also noted that her c-section scar was stable and healed. The examiner noted that her scar is greater than 39 cm2 (6 square inches). In the December 2014 VA scars examination, the examiner also noted that she had one scar, her c-section scar in her lower abdomen. The examiner noted that her scar was painful. Her scar was not unstable, and the scar was not due to burns. The length of her c-section scar was 13 cm x 0.1 cm and was described as linear. Her c-section scar was described as superficial and non-linear, with an approximate total area of less than 5 cm2. In the July 2020 VA examination for scars, the examiner noted that her c-section scar has stayed the same. Her c-section scar measures 16 cm x 1 cm, and is tender to palpation. The total area of her c-section scar is 16 cm2. Specifically, the examiner noted that her c-section scar is painful, and she experiences daily pain of a 4-9 level severity out of 10. She treats the c-section scar by running capsaicin cream on her scar. The examiner noted that she only has one scar, her c-section scar, that is painful, and she has no scars that are unstable. She does not have any scars of the trunk or extremities due to burns. Based on the evidence above, the Board finds that a rating in excess of 10 percent is not warranted for her c-section scar at any point during the appeal period. A higher rating is not warranted under DC 7804, as the Veteran does not have at least 3 scars that are stable or painful. The December 2014 and July 2020 VA examinations noted that her only scar was the scar in her lower abdomen from her c-section. As to whether a rating in excess of 10 percent is warranted under other disability ratings related to the skin, neither the old or current versions of DC 7801 is applicable, as the Veteran's c-section scar is not due to burns, the Veteran's c-section scar has not been described as deep or nonlinear. Furthermore, the Board notes that the Veteran's c-section scar is not associated with underlying soft tissue damage. Furthermore, as noted, it does not cover at least 12 square inches (77 square centimeters) of area. Most recently, the July 2020 VA examination noted that her c-section scar measured 16 cm x 1 cm. Nor is a higher rating warranted under the old or new versions of DC 7802, as 10 percent is the maximum available rating under DC 7802. Furthermore, a higher rating is not warranted under the old or new versions DC 7806, as the evidence does not show that the Veteran has dermatitis or eczema or lesions on her body, which is what is required for a rating in excess of 10 percent under the old and new versions of DC 7806. Given the above, the Board finds that a rating in excess of 10 percent is not warranted for her c-section scar at any point during the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for residuals of right eye surgery is remanded; entitlement to service connection for a gynecological disorder is remanded; entitlement to service connection for a disability manifested by acid reflux is remanded; entitlement to service connection for bilateral foot disabilities is remanded. First, the Board notes that a remand of the above issues is necessary to attempt to obtain the Veteran's outstanding service treatment records. In April 2020, the Board noted, that, other than records relating to a June 1976 childbirth via C-section, the Veteran's service treatment records (STRs) are not of record. In October 2014, the VA Regional Office (RO) notified the Veteran that, after several attempts, her STRs were unavailable for review, and that any further attempts to obtain such records would be futile. However, in July 2014, the National Personnel Records Center (NPRC) reported to the RO that the NPRC had returned the Veteran's records to the Army and instructed the RO to submit a request for them via DPRIS. A September 2014 DPRIS search inquiry, however, shows that records for Army veterans separated prior to October 1992 are located at NPRC. On remand, the RO should attempt to obtain her STRs by requesting records for her 1970-1974 period of service from NPRC and DPRIS, and reconciling the inconsistent responses from NPRC and DPRIS as to where her records are located. In addition, a remand is also necessary to attempt to obtain additional private treatment records. In May 2014, VA received a document in which the Veteran disclosed that she received private treatment for her retinas from Dr. M. D. Ober, and in which the Veteran provided Dr. Ober's contact information. On remand, the RO should attempt to obtain any outstanding private treatment records, particularly any records relating to treatment received by Dr. Ober. As to the Veteran's service connection claim of residuals for right eye surgery, the Veteran reports that she underwent a surgical procedure in her right eye while stationed in Thailand in 1975. See November 2015 Notice of Disagreement. A May 2015 VA progress note also reports "[r]epair of detached retinas in both eyes in 1974. The available post-service medical treatment records note a history of several bilateral eye conditions, including ocular hypertension, blepharitis, allergic conjunctivitis, and surgery for retinal tears in the 1980s. Given the evidence, the Board finds that the low bar of McClendon v. Nicholson, 20 Vet. App. 79 (2006) has been met, and VA's duty to assist and provide an examination has been triggered. Therefore, a remand is necessary for to obtain a VA examination and opinion concerning the etiology of the Veteran's service connection claim for residuals for right eye surgery. As to the Veteran's service connection claim for a disability manifested by acid reflux, the Veteran reported that she was diagnosed with acid reflux by the Army doctor following the birth of her daughter in June 1976. Her medical records confirm a history of epigastric complaints, and a VA disability benefits questionnaire (DBQ) completed by the Veteran's private physician dated June 2019 and received in January 2020 notes diagnoses of gastroesophageal reflux disease (GERD) and gastroparesis. In the January 2020 DBQ, her private physician indicated that her disability began roughly 43 years ago (i.e., during her military service). Given the evidence, the Board finds that the low bar of McClendon v. Nicholson, 20 Vet. App. 79 (2006) has been met, and VA's duty to assist and provide an examination has been triggered. Therefore, a remand is necessary to obtain a VA examination and opinion concerning the etiology of the Veteran's service connection claim for a disability manifested by acid reflux. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records for this Veteran and associate those records with the claims file. Specifically, the RO is requested to attempt to obtain the Veteran's STRs by requesting records for her 1970-1974 period of service from NPRC and DPRIS, and reconciling the inconsistent responses from NPRC and DPRIS as to where her records are located. 2. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. The AOJ is specifically requested to attempt to obtain any private treatment records from Dr. Ober, from whom the Veteran reported receiving treatment for her retinas. 3. RESIDUALS, RIGHT EYE SURGERY: Schedule the Veteran for a VA examination for her claimed residuals of right eye surgery, to include ocular hypertension, blepharitis, allergic conjunctivitis, and surgery for retinal tears in the 1980s. The examiner must review the claims file. The examiner is asked to provide a response to the following for each identified residual of right eye surgery: Is it at least as likely as not (greater than 50 percent probability) that any claimed eye residuals are related to service, including an in-service surgical procedure of the right eye. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as his post-service symptoms The examiner is requested to address the Veteran's specific contention that she underwent a surgical procedure in her right eye while stationed in Thailand in 1975. 4. ACID REFLUX: Schedule the Veteran for a VA examination for her claimed acid reflux, to include her diagnoses gastroesophageal reflux disease (GERD) and gastroparesis. The examiner must review the claims file. The examiner is asked to provide a response to the following or each identified condition: Is it at least as likely as not (greater than 50 percent probability) that any acid reflux conditions, to include gastroesophageal reflux disease (GERD) and gastropares are related to service, including a diagnosis of acid reflux in service. In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as his post-service symptoms. The examiner is requested to address the Veteran's reports that she was diagnosed with acid reflux by the Army doctor following the birth of her daughter in June 1976. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, Associate 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.