Citation Nr: 22017538 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-06 363 DATE: March 25, 2022 ORDER A 10 percent rating is granted for a residual surgical scar from umbilical hernia repair, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected residual surgical scar from umbilical hernia repair, is remanded. FINDING OF FACT The evidence is in approximate balance as to whether the Veteran's residual surgical scar from umbilical hernia repair was painful; the scar was not unstable, did not affect an area of at least 6 square inches, and was not otherwise causative of limitation of function. CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for a 10 percent rating, but no higher, for a residual surgical scar from umbilical hernia repair have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1952 to October 1953. His decorations included the Korean Service Medal with three Bronze Service Stars, the United Nations Service Medal, and the National Defense Service Medal. Unfortunately, he died in November 2014. The appellant is his surviving spouse, who has been substituted for the Veteran for purposes of processing his claim to completion. 38 U.S.C. § 5121A. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. In November 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge, sitting in St. Louis. A transcript of that hearing has been associated with the record. A disability rating of 10 percent, but no higher, is granted for a residual surgical scar from umbilical hernia repair. At the time of his death, the Veteran was in receipt of a 0 (zero) percent (noncompensable) rating for a service-connected surgical scar from umbilical hernia repair under 38 C.F.R. § 4.118, Diagnostic Code 7805. On appeal, the appellant seeks to establish a compensable rating for the scar. She says that the scar was painful. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Scars other than scars of the head, face, or neck are rated under Diagnostic Codes 7801-7805. Diagnostic Code 7801 provides for compensable ratings for scars that are deep (as opposed to superficial) affecting areas of at least 6 square inches (39 square centimeters). Diagnostic Code 7802 provides a maximum 10 percent rating if a scar on other than the head, face, or neck is superficial (not associated with soft tissue damage) and does not cause limited motion, if an area or areas of 144 square inches (929 sq. cm.) or greater are affected. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful, and a 30 percent disability rating is assigned for 5 or more scars that are unstable or painful. 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 if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. Under Diagnostic Code 7805, any disabling effects of scars not considered in a rating under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. VA treatment records during the appeal period do not reflect any complaints pertaining to the residual surgical scar from the Veteran's umbilical hernia surgery. At the November 2021 Board hearing, the appellant testified that the Veteran was in constant pain in the area of the residual surgical scar from his umbilical hernia surgery. She also provided a printout of the medications he was taking, which included pain medication. Resolving reasonable doubt in her favor, the Board finds that the Veteran had one service-related residual surgical scar from his umbilical hernia surgery that was causative of pain. In light of the foregoing, a 10 percent rating is warranted on the basis of one scar that was painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. To that extent, the appeal is granted. A higher or separate disability rating in excess of 10 percent is not warranted, however. The scar in question was not of the head, face, or neck; are not shown to have affected an area, or areas, of at least 6 square inches; and are not shown to have been causative of disabling effects beyond those which are being compensated by the 10 percent rating herein assigned. See Diagnostic Codes 7801-7805. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The appellant seeks to establish service connection for the Veteran's acquired psychiatric disorder. She asserts that the Veteran suffered from depression due to pain associated with his service-connected residual surgical scar from umbilical hernia surgery. See, e.g., November 2021 Board hearing transcript. The record reflects that the Veteran was diagnosed with an acquired psychiatric disorder during his lifetime. See generally VA treatment records (showing that the Veteran's problem list included depression and generalized anxiety disorder; August 2012 VA treatment record (reflecting a diagnosis of dementia with depression). At the November 2021 Board hearing, the appellant reported that the Veteran may have received treatment for his psychiatric condition through the VA Medical Center (VAMC) in St. Louis, Missouri (to include the Jefferson Barracks Division). The Veteran's claims file contains VA treatment records dated through August 2012. It is not entirely clear whether he received additional VA treatment from that time to the time of his passing in November 2014. That needs to be explored. At the Board hearing, the appellant also testified that the Veteran may have received treatment for his psychiatric condition at St. Mary's Hospital (a non-VA medical provider) in St. Louis, Missouri. At present, the record does not contain any treatment records from that facility. Because such records, if obtained, could bear on the outcome of the appellant's appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Finally, at the Board hearing, the appellant and her representative raised the theory that the Veteran's depression was secondary to pain from his service-connected residual surgical scar from umbilical hernia surgery. A remand is required so that a medical opinion on that matter can be procured. This matter is REMANDED for the following action: 1. Ask the appellant to provide a release for relevant records of treatment from St. Mary's Hospital, and to identify, and provide appropriate releases for, any other non-VA care providers who may possess new or additional evidence pertinent to the issue remaining on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the appellant and her representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran may have received from August 2012 to the time of his passing in November 2014, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have an appropriately qualified clinician review the claims file for purposes of preparing a medical opinion with respect to the etiology of the Veteran's psychiatric disorder(s). After reviewing the record, the clinician is requested to provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran had an acquired psychiatric disorder, to include generalized anxiety disorder, depression, and/or dementia, that had its onset in, or is otherwise attributable to, service. If it is the clinician's opinion that it is unlikely that the Veteran had an acquired psychiatric disorder that was incurred in service or is otherwise related to service, the clinician should render a further opinion with respect to whether such disability was (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by the pain from his service-connected surgical scar from umbilical hernia surgery. In so doing, the clinician should consider the appellant's statements to the effect that she witnessed the Veteran being in distress from pain associated with the service-connected scar. A complete medical rationale for all opinions expressed must be provided. If it is the examiner's conclusion that he or she cannot provide the requested opinion(s) without resort to speculation, it must be so stated, and the examiner must provide the reasons why the opinion would require speculation. The examiner must indicate, for example, whether there is a need for further information or testing necessary to make a determination, or whether an opinion cannot be rendered due to limitations of knowledge in the medical community at large (as opposed to limitations of the examiner's knowledge). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.