MALIGNANT NEOPLASMS OF THE GENITOURINARY SYSTEM

MICHAEL PAPPAS · 2019 · Case ID: A19002494

DENIED

Summary

The veteran, who served from March 1970 to October 1971, appeals the denial of an increased disability rating for his service-connected bladder disability and a compensable rating for a post-operative scar. The veteran sought a rating higher than his current 60 percent for his bladder condition, arguing it should be rated at 100 percent by analogy to Diagnostic Codes 7516 (suprapubic cystotomy) or 7333 (colostomy bag). The Board reviewed multiple VA examinations from 2002 through 2019. These examinations consistently found the veteran's bladder cancer to be in remission, with no local recurrence or metastasis. They also indicated no renal dysfunction and no findings attributable to a bladder fistula. The Board noted that the veteran's condition, a cystectomy with ileal conduit, was properly rated based on residual voiding dysfunction, which did not meet the criteria for a rating higher than 60 percent. The Board also denied a compensable rating for the post-operative scar, as the medical evidence showed it was not painful, unstable, or larger than 24 square centimeters, failing to meet the criteria for a compensable rating under Diagnostic Codes 7802 or 7804. The Board assigned low probative value to private medical opinions submitted by the veteran, finding they were not based on the veteran's specific circumstances or a review of his claims file. The Board assigned significant probative value to the VA examinations.

Rationale

Bladder cancer in remission with no recurrence or metastasis.; No renal dysfunction or bladder fistula found.; Residuals of voiding dysfunction did not meet criteria for higher rating.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190515-9060

Full Decision Text

Citation Nr: A19002494
Decision Date: 11/05/19 Archive Date: 11/04/19

DOCKET NO. 190515-9060
DATE: November 5, 2019

THE ISSUES

1. Entitlement to a disability rating in excess of 60 percent for a sarcomatoid soft- tissue cancer of the bladder, post-operative, resulting in radical cystectomy and prostatectomy with recurrent urinary tract infections (hereinafter a “bladder disability”).

2. Entitlement to a compensable disability rating for a scar, status post cystectomy.

ORDER

1. Entitlement to a disability rating in excess of 60 percent for a bladder disability is denied.

2. Entitlement to a compensable disability rating for a scar, status post cystectomy is denied.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's bladder disability has been manifested by no more than symptoms of voiding dysfunction with the use of an appliance.

2. The Veteran's scar, status post cystectomy has not been shown to cover an area of 144 square inches or more and is considered stable and not painful.

CONCLUSIONS OF LAW

1. For the entire period on appeal, the criteria for a disability rating in excess of 60 percent for a bladder disability have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.7, 4.10, 4.20, 4.31, 4.115a, 4.115b, Diagnostic Codes 7333, 7516, 7528 (2018).

2. For the entire period on appeal, the criteria for a compensable disability rating for scar, status post cystectomy have not been met or approximated. 38 U.S.C. § §§ 1155, 5107(a) (2012); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.7, 4.118, Diagnostic Codes 7802, 7804 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In a May 2019 Decision Review Request, the Veteran requested Direct Review by a Veterans Law Judge. This decision has been written consistent with the new AMA framework.

The Veteran served on active duty from March 1970 to October 1971.

This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board observes that the Veteran has made several claims for an increased disability rating for his bladder disability, and therefore finds a review of the procedural history prudent.

The Veteran was initially granted service connection for his bladder disability in a December 2005 rating decision and was granted a disability rating of 60 percent from April 18, 2002, the date of his claim. The Veteran did not submit a timely Notice of Disagreement (NOD) or additional evidence within the one-year period after that rating decision. In May 2017 the Veteran submitted a claim for an increased disability rating for his service-connected bladder disability. In a July 2017 rating decision, the RO continued his rating of 60 percent for a bladder disability and subsequently notified the Veteran that if he wished to appeal the decision, that he must submit a NOD on the appropriate form, which was included. The Veteran did not do so.

Again, in July 2018 the Veteran filed a claim for an increased disability rating for his bladder disability. In an August 2018 rating decision, the RO again continued the Veteran’s 60 percent disability rating for a bladder disability and again notified the Veteran the proper procedure for appealing its decision, including the proper NOD form. The Veteran did not submit a NOD within a year of the August 2018 rating decision.

In September 2018, the Veteran again submitted a claim for an increased rating disability for his bladder disability. A September 2018 rating decision found that there had been clear and unmistakable error in the rating of the Veteran’s bladder disability and assigned the Veteran a temporary 100 percent disability rating for his bladder from April 18, 2002, the date of the Veteran’s original claim for service connection, to July 1, 2002, which is the first of the month following the date that the convalescence period ended. From July 1, 2002, the Veteran’s 60 disability rating was continued. Again, the RO subsequently notified the Veteran that if he wished to appeal the decision, that he must submit a NOD on the appropriate form, which was included. The Veteran did not do so.

In October 2018, the Veteran submitted yet another claim for an increased disability rating for his bladder disability, this time clarifying that he was seeking a 100 percent disability rating for the entire period he was service connected for his bladder disability. In a December 2018 rating decision, the RO continued the Veteran’s 60 percent disability rating for a bladder disability. Again, the RO subsequently notified the Veteran that if he wished to appeal the decision, that he must submit a NOD on the appropriate form, which was included. The Veteran has not done so.

Finally, in March 2019, the Veteran submitted another claim for an increased disability rating for his bladder disability. In an April 2019 rating decision, the RO again continued his 60 percent disability rating for a bladder disability rating and granted service connection for a scar, status post cystectomy and assigned a noncompensable disability rating for that disability. The Veteran then filed a VA Form 10182 in May 2019, disagreeing with the April 2019 rating decision, and elected the Direct Review lane. To this point, as the Veteran elected to participate in the higher-level review appeal lane based upon the evidence already submitted to VA as of the date of the April 2019 rating decision, the Board is prohibited from seeking additional evidence on behalf of the Veteran.

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation 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 (2018). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018).

A disability rating may require re-evaluation in accordance with changes in a Veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1 (2018). See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

1. Entitlement to a disability rating in excess of 60 percent for a bladder disability
).

1. Entitlement to a disability rating in excess of 60 percent for a bladder disability is denied.

As an initial matter, the Board notes that the only issue that has been properly perfected for appeal is the denial of a disability rating in excess 60 percent disability for a bladder disability in the April 2019 rating decision. While the Board acknowledges the Veteran’s contention that he is entitled to a 100 percent disability for the entire period he has been service connected for his bladder disability, as discussed above, the Veteran did not submit a timely and proper NOD to the December 2005 rating decision granting an initial disability rating of 60 percent or the September 2018 rating decision finding that there had been a clear and unmistakable error in the rating of the Veteran’s bladder disability and assigning a temporary 100 percent disability rating from April 18, 2002 to July 1, 2002. The Veteran has not alleged clear and unmistakable error in any of the final rating decisions.

The Veteran contends that he is entitled to a disability rating in excess of 60 percent for his service-connected bladder disability.

The Veteran’s sarcomatoid soft-tissue cancer of the bladder is evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528, which covers malignant neoplasms of the genitourinary system and provides for an initial 100 percent disability rating. The 100 percent disability rating is provided until at least six months following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, at which time the Veteran is to be provided a VA examination. 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Based upon that or any subsequent VA examination, the disability rating is open to revision in accordance with the criteria set forth in 38 C.F.R. § 3.105 (e). If there is no local reoccurrence or metastasis, the service-connected genitourinary disease is to be rated on residuals as a voiding dysfunction or a renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528.

The Veteran underwent a cystectomy for treatment for sarcomatoid soft-tissue cancer of the bladder in December 2001, and he was awarded service-connection for his disability effective from April 18, 2002, the date of his initial claim for service connection. As noted above, this matter arose from a VA initiative to re-evaluate his disability; and as discussed further below, pertinent medical records demonstrate no local reoccurrence or metastasis of the Veteran's sarcomatoid soft-tissue cancer of the bladder within the period on appeal, and the Veteran has not contended otherwise. Accordingly, the Veteran is not entitled to a 100 percent disability rating at any time during the appeal period. Instead, for the entire rating period, the Veteran's disability is properly rated based on residual symptoms, either as a voiding dysfunction or a renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b, Diagnostic Code 7528.

Voiding dysfunction is evaluated under 38 C.F.R. § 4.115a, which provides that any voiding dysfunction shall be rated by the particular condition as urine leakage, urinary frequency, or obstructive voiding. Under urine leakage conditions (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a.

Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime void
incontinence), a 60 percent disability rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. A 40 percent disability rating is warranted for the wearing of absorbent materials which must be changed two to four times per day. A 20 percent disability rating is warranted for the wearing of absorbent materials which must be changed less than two times per day. 38 C.F.R. § 4.115a.

Under urinary frequency conditions, a 40 percent disability rating is warranted for a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. A 20 percent disability rating is warranted for a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 10 percent disability rating is warranted for a daytime voiding interval between two and three hours, or; awakening to void two times per night. Id.

Under obstructed voiding conditions, a 30 percent disability rating is warranted for urinary retention requiring intermittent or continuous catheterization. A 10 percent disability rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry demonstrating markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A non-compensable disability rating is warranted for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. Id.

Renal dysfunction is also evaluated under 38 C.F.R. § 4.115a. A 100 percent disability rating is warranted for regular dialysis or such dysfunction that precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, a BUN [blood urea nitrogen] level more than 80 mg% [milligrams of urea nitrogen per 100 milliliters of blood]; or a creatine level more than 8mg% [milligrams of serum creatine per 100 milliliters of blood]; or, markedly decreased function of the kidney or other organ systems, especially cardiovascular. An 80 percent disability rating requires persistent edema and albuminuria with a BUN level of 40mg% to 80mg%; or a creatine level of 4mg% to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 60 percent disability rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. A 30 percent disability rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A non-compensable disability rating is warranted for albumin and casts with history of acute nephritis; or, hypertension non-compensable under Diagnostic Code 7101. Id.

In his May 2019 Notice of Disagreement, the Veteran asserted that his disability was more severe than reflected by the current assigned evaluation. To wit, the Veteran believes that his cystectomy with ileal conduit urinary diversion is analogous to a suprapubic catheter, which warrants a 100 percent disability rating under Diagnostic Code 7516 for postoperative, suprapubic cystotomy. See March 2019 Correspondence. Diagnostic Code 7516 contemplates a rating for fistula of the bladder. Under Diagnostic Code 7516, a 100 percent disability rating is assigned when a fistula of the bladder results in a postoperative suprapubic cystotomy, and all else is rated under 38 C.F.R. § 4.115a as voiding dysfunction or urinary tract infection, whichever is predominant.

Alternatively, the Veteran argues that his cystectomy with ileal conduit urinary diversion is analogous to a colostomy bag as outlined in Diagnostic Code 7333. See March 2019 Correspondence. Diagnostic Code 7333 provides ratings for stricture of the rectum and anus. A 30 percent rating is warranted for moderate reduction of lumen or moderate constant leakage; a 50 percent rating is warranted for great reduction of lumen, or extensive leakage; and a 100 percent rating is warranted for requiring colostomy. 38 C.F.R. § 4.114, DC 7333.

In December 2001, the patient underwent surgery for his bladder cancer. In January 200
tract infection, whichever is predominant.

In December 2001, the patient underwent surgery for his bladder cancer. In January 2002, private medical records reveal that he used a stoma and that he was recovering from his surgery. In March and April 2002 medical records, the Veteran was again noted to use a stoma and that his incision was well healed. In a June 2002 private treatment note, a private medical examiner wrote: “His CT scan recently shows no evidence of hydronephrosis, no evidence of masses, and no evidence of recurrence. His stoma looks good. His incision is well healed. At this point, I do not think that any other active intervention is needed.” The Veteran was evaluated by a VA facility in December 2002, and was noted to have a cystectomy with ileal conduit for sarcomatoid cancer of the bladder. See December 2002 VA treatment note.

In September 2003, the Veteran was afforded a VA examination. The VA examiner noted that the Veteran had to empty his ostomy bag once every two hours and that he had a history of “one renal stone.” Another October 2005 VA examination revealed the Veteran had an ostomy bag but “no renal colic, bladder stones, or acute nephritis.”

In June 2017, prior to the period on appeal, the Veteran was provided a VA examination using Acceptable Clinical Evidence (ACE). The VA examiner confirmed a diagnosis of “sarcomatoid carcinoma of the bladder, s/p cystectomy and prostatectomy.” The examiner noted voiding dysfunction and found that the Veteran required the use of an appliance. The examiner described the appliance in the following terms: “The ileal conduit requires drainage out of an ostomy, and the patient’s urine goes into an ostomy bag.” The examiner noted that there were no findings, signs, or symptoms attributable to a bladder fistula. While the examiner noted that Veteran had a cystectomy in December 2001, the examiner found no renal dysfunction due to the Veteran’s condition. The examination revealed that the Veteran had a malignant neoplasm that was in remission. The Veteran was confirmed to have completed treatment. The VA examiner noted, however: “In 2012 the [Veteran] had a [right] ureteral stone (which may have been related to his ileal conduit although he was prone to stones prior to the creation of the conduit). This was treated with ESWL, and the [Veteran] has no residuals from this.” The examiner found no other pertinent physical findings and noted that the Veteran’s condition negatively impacted his ability to work.

The Veteran was afforded an additional VA examination using ACE in August 2018. The VA examiner made a diagnosis of “recurrent [urinary tract infection] due to ileal conduit s/p/ cystectomy secondary to sarcomatoid carcinoma of the bladder.” The examiner stated there were no findings, signs or symptoms attributable to a bladder fistula. The examination revealed no voiding dysfunction. The examiner also found no renal dysfunction due to the Veteran’s condition. The examination revealed that the Veteran had a malignant neoplasm that was in remission. The examiner noted that Veteran had a cystectomy in December 2001. The Veteran was confirmed to have completed treatment, but the examiner listed the residual conditions and complications as “ileal conduit with recurrent infections, fatigue.” There were no other pertinent physical findings and the examiner found that the Veteran’s bladder disability impacted his ability to work due to frequent hospitalizations.

The Veteran’s recurrent urinary tract infections were consolidated with his bladder disability in order to avoid pyramiding in an August 2018 rating decision. As noted above, the Veteran did not appeal the August 2018 rating decision.

In November 2018, the Veteran was afforded an in-person VA examination. The VA examiner confirmed a diagnosis of “sarcomatoid carcinoma of the bladder, s/p cystectomy and prostatectomy.” The examiner noted voiding dysfunction and found that the Veteran required the use of an appliance. The examiner described the appliance in the following terms: “The ileal conduit drains into an ostomy bag.” The examiner noted that there were no findings, signs, or symptoms attributable to a bladder fistula. While the examiner noted that Veteran had a cystectomy in December 2001, the examiner found no renal dysfunction due to the Veteran’s condition. The VA examiner found a history of urinary tract infections, “likely related to the Veteran’s ileal conduit/ostomy,” which required hospitalization more than two times per year along with treatment with antibiotics as needed. The examination revealed that the Veteran had a malignant neoplasm that was in remission. The Veteran was confirmed to have completed treatment. The VA examiner found the Veteran had a normal gait, was “well appearing,” and had no signs of distress. The examiner concluded that the Veteran’s condition did not negatively impacted his ability to work.

The Veteran filed a new increased rating claim for his bladder disability in March 2019 and was afforded a new VA examination using ACE in March 2019. The VA examiner confirmed a diagnosis of “sarcomatoid carcinoma of the bladder, s/p cystectomy and prostatectomy.” The examiner noted voiding dysfunction and found that the Veteran required the use of an appliance. The examiner described the appliance in the following terms: “The [Veteran] requires supplies for the ostomy bag.” The examiner noted that there were no findings, signs, or symptoms attributable to a bladder fistula. While the examiner noted that Veteran had a cystectomy in December 2001, the examiner found no renal dysfunction due to the Veteran’s condition. The VA examiner found a history of urinary tract infections that were “likely related to the Veteran’s ileal conduit/ostomy.” These infections required hospitalization more than two times per year and long-term drug therapy. The examination revealed that the Veteran had a malignant neoplasm that was in remission. The Veteran was confirmed to have completed treatment. The VA examiner found no other pertinent physical findings and noted that the Veteran’s condition negatively impacted his ability to work.

In support of his claim, the Veteran has submitted evidence from “militarydisabilitymadeeasy.com”. The correspondence, dated September 2018, stated: “Thank you for your inquiry. Yes, a urostomy is considered a suprapubic cystotomy and should be rated at 100 [percent] under [diagnostic] code 7516. They should have rated you appropriately after the surgery.” The Veteran also submitted a statement from a Dr. GPJ of “militarydisabilitymadeeasy.com”, dated December 2017, which stated: “a stoma after the removal of the bladder is usually rated as a suprapubic cystotomy under code 7516. The rating for this condition is 100 [percent].” The Board also acknowledges that the Veteran has submitted additional material which generally comments on the differences between different appliances.

Neither of these medical opinions seem to be predicated on the facts of the Veteran’s specific circumstances. Instead, it appears that they were obtained by the Veteran via email and/or chat feature through a commercial website. Neither of the authors indicate that an in-person examination or review of the claims file was conducted. Furthermore, the first correspondence is not signed by a recognizable medical professional, but rather a website. Therefore, the Board assigns these opinions low probative value.

The Veteran also submitted a short statement from a Dr. SW, a private physician who treated the Veteran, which stated: “It is my professional opinion that a urinary diversion in that form of an ileal conduit is more involved in magnitude than a [suprapubic] tube.” See February 2019 private medical note. Additionally, the Veteran submitted a short statement from a Dr. MK, a VA urologist, which stated: “It is my professional opinion that urinary diversion in the form of ileal conduit is more if not equal in the magnitude when compared to [suprapubic] tube drainage of the urinary bladder.” See February 2019 VA medical record.

The Board notes that neither of these medical opinions submitted by the Veteran appear to be based on a review of the Veteran’s claims file. While Dr. SW has previously treated the Veteran for his bladder disability, his opinion merely states that the Veteran’s ileal conduit is more involved than a suprapubic cystotomy, not that the Veteran
.” See February 2019 private medical note. Additionally, the Veteran submitted a short statement from a Dr. MK, a VA urologist, which stated: “It is my professional opinion that urinary diversion in the form of ileal conduit is more if not equal in the magnitude when compared to [suprapubic] tube drainage of the urinary bladder.” See February 2019 VA medical record.

The Board notes that neither of these medical opinions submitted by the Veteran appear to be based on a review of the Veteran’s claims file. While Dr. SW has previously treated the Veteran for his bladder disability, his opinion merely states that the Veteran’s ileal conduit is more involved than a suprapubic cystotomy, not that the Veteran suffers from any renal dysfunction or has a colostomy or suprapubic cystotomy. Similarly, Dr. MK’s medical opinion merely states the severity of an ileal conduit is at least equal to that of a suprapubic tube drainage, not that the Veteran currently has a suprapubic cystotomy, a colostomy, or suffers from any renal dysfunction. Therefore, the Board assigns Dr. SW and Dr. MK’s medical opinions low probative value.

The Board assigns the VA examinations during and immediately prior to period on appeal significant probative value, however. Each examination was conducted after a full review of the Veteran’s claims file and addresses the Veteran’s specific and unique medical profile. The VA examinations consistently show that the Veteran’s bladder cancer is in remission, that the Veteran did not suffer from renal dysfunction, and that the Veteran did not have a postoperative, subpubic cystotomy or colostomy.

The Board further notes that the rating schedule provides for an evaluation in excess of 60 percent only for renal dysfunction, postoperative suprapubic cystotomy, multiple urethroperineal fistulae, malignant neoplasms of the genitourinary system, or following a kidney transplant. 38 C.F.R. § § 4.115a, 4.115b, Diagnostic Codes 7516, 7519, 7528, 7531 (2018). The Veteran has not been noted to suffer from any of the above conditions at any time during the period on appeal, and an evaluation in excess of 60 percent for the service-connected bladder disability cannot be granted. 38 C.F.R. § § 4.115a, 4.115b, Diagnostic Code 7528 (2018).

The Board acknowledges that the Veteran believes that he is entitled to an increased rating for his bladder disability, however the Diagnostic Code is clear.

Therefore, a higher disability evaluation is not warranted under Diagnostic Code 7528, or any other Diagnostic Code, for the Veteran’s bladder disability. As the preponderance of evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3.

2. Entitlement to a compensable disability rating for scar, status post cystectomy is denied.

The Veteran seeks a compensable disability rating for his scar, status post cystectomy.

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial and nonlinear. Superficial and nonlinear scars in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. A separate evaluation is assigned based on the total area of the qualifying scars that affect the anterior portion of the trunk, and a separate evaluation is assigned based on the total area of the qualifying scars that affect the posterior portion of the trunk. The separate evaluations are combined under 38 C.F.R. § § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § § 4.118, DC 7802.

Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are 10 percent disabling. Three or four scars that are unstable or painful are 20 percent disabling. Five or more scars that
on the total area of the qualifying scars that affect the anterior portion of the trunk, and a separate evaluation is assigned based on the total area of the qualifying scars that affect the posterior portion of the trunk. The separate evaluations are combined under 38 C.F.R. § § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § § 4.118, DC 7802.

Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are 10 percent disabling. Three or four scars that are unstable or painful are 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. This is the highest rating available under this Diagnostic Code. 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. 38 C.F.R. § § 4.118, Diagnostic Code 7804. Note (2) provides that if one or more scars are both unstable and painful, 10 percent may be added to the evaluation that is based on the total number of unstable or painful scars.

The Veteran has been service connected for his post-operative scar from December 12, 2018.

A November 2018 VA examination notes that the Veteran had a “24 cm x 1.0 cm” scar on his mid lower abdomen which was associated with his service-connected bladder disability. The examiner found that the scar was not tender or painful and that there was no elevation, depression, adhesion, keloid or break down. The scar was not noted to be unstable. Similarly, a March 2019 VA examination notes that the Veteran had a “24 cm x 1.0 cm” scar on his lower abdomen. The examiner found that the scar was not painful or unstable.

There are no other examinations or descriptions of the scar in the entire period on appeal in the record, and the Veteran has not contended that his scar is painful, unstable, or larger in area than is recorded in the November 2018 and March 2019 VA examinations.

A compensable rating under Diagnostic Code 7802 is not possible unless the area of the scars is 144 square inches or greater, and that they are superficial and nonlinear. Here the total area of the scar is 24 centimeters squared in total. A compensable rating under Diagnostic Code 7804 is not possible unless the scars are considered unstable or painful. Here, the medical evidence indicates that the scar is not considered unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7804, 7805.

After careful review of the clinical findings, the Board finds that during the course of the appeal the Veteran has not had symptoms more nearly approximating the criteria for a compensable rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for scar, status post cystectomy. To this extent, the appeal is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board R.E. Geary, 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.

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