BVA9503804 DOCKET NO. 92-10 456 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased evaluation for residuals of a partial nephrectomy with abdominal scar, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from January 1970 to October 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO&IC) in Philadelphia, Pennsylvania. In February 1993 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. The Board notes that the February 1993 remand requested the RO&IC to develop and adjudicate entitlement to service connection for low back disability as secondary to the veteran's service connected kidney disability. In its September 1994 rating decision, the RO&IC denied service connection on both direct and secondary bases. While the veteran and his representative have not specifically disagreed with the denial of service connection on a secondary basis, it appears that they may be contending that the current back problem started in service. This issue is referred to the RO&IC for further clarification and any appropriate action in accordance therewith. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he is entitled to separate schedular disability ratings for the residuals of his partial left nephrectomy and for painful, postoperative abdominal scar. He feels the end result should be more than a 10 percent rating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased evaluation for service-connected residuals of a partial nephrectomy with abdominal scar. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO&IC. 2. The veteran's service-connected residuals of a partial nephrectomy are currently restricted to well-healed scars which do not impede functioning; renal dysfunction is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of a partial nephrectomy with abdominal scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.115a, Diagnostic Codes 7500, 7804 and 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim for an increased rating for residuals of a partial nephrectomy with abdominal scar is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed with respect to this issue and that no further assistance to the veteran is required to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's disability. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to the veteran's residuals of a partial nephrectomy with a tender abdominal scar. In May 1971 the veteran underwent a partial nephrectomy of the lower pole of the left kidney. A VA medical certificate received in June 1990 shows that the veteran complained of constant, dull non-radiating pains in his stomach and sides that had begun the previous day. The veteran did not experience nausea, vomiting, fever or chills. He did have one episode of watery brown stool that was negative for melena or bright red blood per rectum. Upon examination of the veteran's abdomen, the examiner noted positive bowel sounds and a well-healed surgical scar at the midline. The abdomen was nontender to palpation with no evidence of masses or organomegaly. The examiner opined that the veteran had a possible viral gastroenteritis. A May 1990 VA medical report shows that the veteran complained of mid- abdominal "crampy" pain that radiated into his left flank. The veteran indicated that this pain was of five years duration, but had become worse in the last three days. The examiner noted that previous upper gastrointestinal series had been negative. There was no evidence of nausea, vomiting, fever or dysuria. The veteran did have diarrhea. An undated VA medical certificate, received in May 1991, shows that the veteran was seen with complaints of mid-abdominal and back pain. He indicated that the pain radiated into his groin. There was no evidence of pyuria, hematuria, kidney stones or urinary tract infection. The veteran did have dysuria of four days duration and also referred to nocturia and diarrhea. The examiner noted that the veteran's abdomen was soft with mild tenderness at the mid-left quadrant. Bowel sounds were also discerned. The examiner's preliminary assessment was either a urinary tract infection or kidney stone, with further studies ordered and a referral to determine a final diagnosis. Unfortunately, that information is not of record. An April 1991 VA progress note shows history of the veteran's partial left nephrectomy in 1971, and further shows that the veteran had discomfort in the mid- back region since the operation. The examiner noted that the veteran had no urinary symptoms and went to VA for outpatient treatment of his back. The examiner ordered an ultrasound study of the veteran's kidneys. The May 1991 VA renal ultrasound examination report shows some loss of renal cortex in the upper pole of the left kidney. There was no evidence of a mass lesion. Further, there was no evidence of hydronephrosis in either kidney. The report of a May 1991 VA examination for compensation purposes shows that the veteran's abdomen was soft with a nontender long midline surgical scar, and a smaller scar on the left flank from a drainage tube. The diagnosis was status post partial left nephrectomy. A September 1993 VA examination report shows that in 1971 the veteran had a traumatic injury to his belly, and as a result underwent a laparotomy with resection of a small portion of his left kidney. The examiner found an 8 inch, well-healed, nontender midline abdominal scar, as well as a well-healed, two inch, lateral scar at the umbilicus level. This second scar was also nontender. The examiner noted that the veteran's kidney function had been normal over the years "as would be expected from resection of such a small portion of kidney mass". It was opined that there were no residuals of the original partial left nephrectomy. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and these ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155. Service connection is in effect for residuals of a partial nephrectomy with abdominal scar, which is rated under the provisions of 38 C.F.R. Part 4, Diagnostic Code 7804. That code provides a 10 percent evaluation for objectively demonstrated tender and painful superficial scars. The code does not provide a higher evaluation. Diagnostic Code 7805 provides that scars may also be rated on limitation of function of the part affected. Turning to the renal criteria of the Rating Schedule, Diagnostic Code 7500 provides for a minimum 30 percent rating if a kidney has been removed. That is not the case here, as the surgery in question involved only the resection of a very small amount of kidney mass. That leaves us with the possibility of a rating on the basis of renal dysfunction. See 38 C.F.R. § 4.115a. Here, however, there is none. The last VA examiner was quite emphatic on this point, and his opinion is consistent with recent VA clinical history. Moreover, there is no contradictory clinical opinion of any sort on file. The only residuals of the veteran's surgery are well-healed scars, which are not now tender and which do not impede function in any way. Under such circumstances, there is no basis for any separate evaluation and no possibility of more than a 10 percent rating. In reaching this conclusion, the Board finds that this case does not present such an exceptional or unusual disability picture as to render impracticable the application of the regular schedular standards. 38 C.F.R. § 3.321(b). The Board also considered the provisions of 38 C.F.R. § 4.7 in reaching our decision, but for the reasons discussed above have concluded that the currently assigned rating is appropriate. ORDER An increased rating for residuals of a partial nephrectomy with abdominal scar is denied. J. J. SCHULE Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.