Citation Nr: 0711519 Decision Date: 04/18/07 Archive Date: 05/01/07 DOCKET NO. 03-31 672 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for the right groin scar, residual of repair of a pseudoaneurysm of the right femoral artery, as a result of cardiac catheterization for compensation purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from October 1969 to July 1970. This case was previously before the Board of Veterans' Appeals (Board) in April 2006 when it was remanded for further development. FINDINGS OF FACT 1. The veteran's residual surgical scar of the right groin, which measures approximately 10 cm long and 2 mm wide, is shown to be superficial, slightly raised and well healed. 2. Since compensation became effective on May 24, 1990, the right groin scarring not shown to have been tender or painful, poorly nourished or otherwise productive of related functional loss; nor is the superficial scarring shown to be unstable. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for the right groin scar, residual of repair of a pseudoaneurysm of the right femoral artery, as a result of cardiac catheterization, for compensation purposes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.31, 4.118 including Diagnostic Codes 7803, 7804, 7805 (effective prior to August 30, 2002); 38 C.F.R. § 4.118 including Diagnostic Code 7802, 7803, 7804, 7805 (effective August 30, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist Prior to consideration of the merits of the veteran's appeal, the Board must determine whether VA has met its statutory duty to assist the veteran in the development of his claim for an increased rating for the surgical scar in his right groin. 38 U.S.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In May 1990, the RO received the veteran's claim for compensation for the residuals of surgery to remove a pseudoaneurysm from his right groin. In March 2001, the RO notified the veteran of the criteria to establish compensation for a particular disability. The RO also notified the veteran and his representative of the following: (1) the information and evidence not of record that was necessary to substantiate the veteran's claims; (2) the information and evidence that VA would seek to provide,; (3) the information and evidence that the veteran needed to provide; and (4) the need to furnish VA any other information or evidence in the veteran's possession that pertained to his claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In May 2003, the Board granted the veteran's claim for compensation for a right groin scar, residual of repair of a pseudoaneurysm of the right femoral artery, as a result of cardiac catheterization. Later that month, the RO assigned an noncompensable evaluation for that disability, effective on May 24, 1990. The veteran disagreed with that rating, and this appeal ensued. Until recently, if a veteran was notified of VA's duty to assist him in the development of his claim for compensation for a particular disability (and compensation was subsequently granted), an additional duty to assist notice was not required to be sent regarding the "downstream" issue of an increased initial rating. See VAOPGCPREC 8-2003. However, the recent decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), makes clear that a proper duty to assist notice regarding degree of disability is required in cases involving "downstream" increased rating claims. In Dingess/Hartman, the Court observed that a claim for VA compensation consisted of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of compensation. Because a compensation claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) applied generally to all five elements of that claim. Therefore, upon receipt of an application for compensation, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if compensation is awarded. In this case, elements (1), (2), and (3) are not at issue as veteran status is undisputed and compensation is already in effect for a right groin scar. By a letter, dated in April 2006, the VA Appeals Management Center (AMC) in Washington, D.C., notified the veteran of the method VA used to determine the disability rating and the effective date of benefits. After reviewing the record, the Board finds that VA has met its duty to assist the veteran in the development of evidence necessary to support his claim. Not only has the veteran received notice of VA's duty to assist him with such development, he has submitted additional evidence and argument in support of his claim and has been examined by VA to determine the extent of his impairment caused by his right groin scar. Thereafter, the AMC readjudicated the veteran's appeal, taking into account all of the evidence and argument submitted in support of that appeal. Since that time, the veteran has not identified any outstanding evidence (that has not been sought by VA), which could be used to support his appeal. In fact, in October 2006, he reported that he had no other information or evidence to submit. Given the efforts by the RO to develop the record, there is no reasonable possibility that further development would lead to any additional relevant evidence with respect to the issue on appeal. Indeed, the veteran has had ample opportunity to participate in the development of his appeal. As such, there is no prejudice due to a failure to assist him with the claim for an increased rating for his right groin scar. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006) (discussing prejudicial error). Therefore, further action is unnecessary in order to meet VA's statutory duty to assist the veteran in the development of his claim. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). II. Facts and Analysis Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2006). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from VA compensated disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. At the outset of the veteran's claim, scars (other than burn scars or disfiguring scars of the head, face, or neck) were rated in accordance with 38 C.F.R. § 4.118, Diagnostic Codes 7803 - 7805. Under Diagnostic Code 7803, a 10 percent rating was warranted when superficial scars were poorly nourished with repeated ulceration. Under Diagnostic Code 7804, a 10 percent rating was also warranted for superficial scars which were painful and tender on objective demonstration. Under Diagnostic Code 7805, other scars could be rated based on the limitation of motion of the affected part. Then, as now, where the rating schedule did not provide a no percent evaluation for a diagnostic code, a no percent evaluation was to be assigned when the requirements for a compensable evaluation were not met. 38 C.F.R. § 4.31. During the pendency of the veteran's appeal, the rating schedule was revised with respect to rating skin disorders, including scars. 67 Fed. Reg. 49,590-49,599 (July 31, 2002). That change became effective on August 30, 2002. Under the revised regulations, a 10 percent rating is warranted for scars (other than those involving the head, face, or neck) that are superficial and that do not cause limited motion, provided that they cover an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (2). A 10 percent rating is warranted for scars which are superficial and unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803, Note (1). A 10 percent rating is warranted for a superficial scar which is painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars are rated base on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. VAOGCPREC 7-2003. The Board will therefore evaluate the veteran's right groin scar under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 2002); VAOPGCPREC 3-2000; Green v. Brown, 10 Vet. App. 111, 117 (1997). The Board provided the veteran with the old and new regulatory criteria in the SOC. Since that time, the veteran and/or his representative have submitted additional evidence and argument in support of the veteran's claim. The veteran has also been examined by VA in conjunction with that claim. In May 2003, the Board granted compensation under 38 U.S.C.A. § 1151 for a right groin scar, residual of repair of a pseudoaneurysm of the right femoral artery, as a result of cardiac catheterization. Later in May 2003, the RO assigned a noncompensable rating for that scar, effective on May 24, 1990. That decision was an initial rating award. When an initial rating award is at issue, a practice known as "staged" ratings may apply. That is, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, in accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's right groin scar. In January 1990, the veteran is shown to have undergone a cardiac catheterization at a VA medical center. Several days later, he developed a pseudoaneurysm in the right femoral artery and underwent surgical repair. Following surgery, the veteran felt slight incisional tenderness. However, after eight days of hospitalization, he was discharged free of major complaints. Thereafter, VA medical records and reports, such as those dated in July 1991 and August 1994, confirmed that the surgical scar in the veteran's right groin had healed well. In September 2006, the veteran was examined for VA to evaluate the status of the residual scar. On examination, the scar was noted to measure approximately 10 cm in length and 2 mm width. It was non tender, and there was no evidence of infection. However, the scar was raised and not attached to any underlying muscle or bone. Based on the veteran's assertion and recent clinical findings, the Board finds the disability picture referable to the residual right groin scarring to meet the criteria for the assignment of a compensable rating under the applicable rating criteria. In this regard, the scarring is not shown to be tender or painful, poorly nourished or otherwise productive of any related functional limitation. Under the newer rating criteria, the residual scar cannot be found to be unstable. In arriving at this decision, the Board has considered the possibility of "staged" ratings noted in Fenderson. However, since compensation became effective May 24, 1990, the manifestations of the veteran's right groin scar have been generally consistent. As such, there is no basis for the assignment of staged ratings. Finally, the Board notes that the veteran reported complaints of having sexual dysfunction and pain and numbness in the right groin area radiating into the right lower extremity. However, such manifestations are shown to be associated with the residual surgical scarring. ORDER An increased, compensable rating for the right groin scar, residual of repair of a pseudoaneurysm of the right femoral artery, as a result of cardiac catheterization, for compensation purposes is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs