Citation Nr: 1047434	
Decision Date: 12/21/10    Archive Date: 12/22/10

DOCKET NO.  07-25 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Evaluation of appendectomy residuals, rated as 
noncompensable.

2.  Evaluation of residuals of left 1st metacarpal fracture, 
rated as noncompensable.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

Appellant (the Veteran) had active service from September 1979 to 
February 1982. 

This appeal comes before the Board of Veterans' Appeals (Board) 
from an April 2007 rating decision of the Department of Veterans 
Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran failed to report for a Board hearing at the RO which 
was scheduled to be conducted in December 2010.  To the Board's 
knowledge, the Veteran has offered no explanation as to why he 
was unable to appear and he has since made no request for another 
hearing.  Accordingly, the Board will proceed to a decision on 
this appeal as if the hearing request had been withdrawn.  See 38 
C.F.R. § 20.704(d) (2010) [failure to appear for a scheduled 
hearing treated as withdrawal of request]. 

The issue of the evaluation of residuals of left 1st metacarpal 
fracture is addressed in the REMAND below and is therein REMANDED 
to the RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDING OF FACT

The Veteran's appendectomy residuals are manifested by occasional 
pain.


CONCLUSION OF LAW

The criteria for a 10 percent initial disability rating, but not 
higher, for appendectomy residuals, are met.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic 
Code 7804 (2010).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 
106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 
2009)) redefined VA's duty to assist the Veteran in the 
development of a claim.  VA regulations for the implementation of 
the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2010).

Under the VCAA, VA must inform the claimant of any information 
and evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must request that the 
claimant provide any evidence in his possession that pertains to 
the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 
(2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) 
has also held that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a 
service connection claim.  Those five elements include: 1) 
Veteran status; 2) existence of a disability; 3) a connection 
between the Veteran's service and the disability; 4) degree of 
disability; and 5) effective date of the disability.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In an August 2006 pre-rating letter, the RO notified the Veteran 
of the evidence needed to substantiate his claims.  This letter 
also satisfied the second and third elements of the duty to 
notify by delineating the evidence VA would assist him in 
obtaining and the evidence it was expected that he would provide.  
Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles 
v. Principi, 16 Vet. App. 370 (2002).

The appellant has substantiated his status as a Veteran.  He was 
notified of all other elements of the Dingess notice, including 
the disability-rating and effective-date elements of his claims, 
in the August 2006 letter.

The VCAA also requires VA to make reasonable efforts to help a 
claimant obtain evidence necessary to substantiate his claim.  38 
U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to 
assist" contemplates that VA will help a claimant obtain records 
relevant to his claim, whether or not the records are in Federal 
custody, and that VA will provide a medical examination or obtain 
an opinion when necessary to make a decision on the claim.  38 
C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records 
and all of the identified post-service private and VA treatment 
records.  In addition, the Veteran was afforded a VA examination.  
This examination was adequate because it was performed by a 
medical professional based on a review of claims file, 
solicitation of history and symptomatology from the Veteran, and 
a thorough examination of the Veteran.  The resulting diagnoses 
and rationales were consistent with the examination and the 
record.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).

II.  Analysis

Disability evaluations are determined by application of the 
criteria set forth in the VA's Schedule for Rating Disabilities, 
which is based on average impairment in earning capacity.  38 
U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of 
disability present must also include consideration of the 
functional impairment of the Veteran's ability to engage in 
ordinary activities, including employment.  38 C.F.R. § 4.10.  
When a question arises as to which of two ratings apply under a 
particular diagnostic code, the higher evaluation is assigned if 
the disability more closely approximates the criteria for the 
higher rating.  38 C.F.R. § 4.7.  After careful consideration of 
the evidence, any reasonable doubt remaining is resolved in favor 
of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making 
disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath 
v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to 
compensation already has been established and an increase in the 
disability rating is at issue, it is the present level of 
disability that is or primary concern.  See Francisco v. Brown, 7 
Vet. App. 55, 58 (1994).  However, in Fenderson, the Court noted 
an important distinction between an appeal involving a claimant's 
disagreement with the initial rating assigned at the time a 
disability is service connected.  Where the question for 
consideration is the propriety of the initial rating assigned, 
evaluation of the medical evidence since the effective date of 
the grant of service connection is required.  See Fenderson, 12 
Vet. App. at 126.

In the April 2007 rating decision, the RO granted service 
connection and assigned an initial noncompensable rating for 
appendectomy residuals, pursuant to Diagnostic Code 7805, 
effective August 1, 2006.  

Under Diagnostic Code 7805, scars are to be rated in accordance 
with limitation of function of the part affected.  However, on VA 
examination in November 2006, the Veteran complained of 
occasional pain about the scar site, but no other complications.  
The examiner found no limitation of motion.  The diagnosis was 
appendectomy scar, healed without significant residual symptoms 
or disability.

As there is no limitation of function of any part resulting from 
the appendectomy scar, a rating under Diagnostic Code 7805 is not 
appropriate, and a compensable rating is not warranted.  

The Board has considered other diagnostic codes applicable to 
scars.  The Board notes that the criteria used to evaluate 
disabilities involving the skin were revised during this appeal.  
In VAOPGCPREC 3-2000 (April 2003), VA's General Counsel held that 
when a provision of the VA rating schedule is amended while a 
claim for an increased rating under that provision is pending, a 
determination as to whether the intervening change is more 
favorable to the Veteran should be made.  If the amendment is 
more favorable, that provision should be applied to rate the 
disability for periods from and after the effective date of the 
regulatory change; and the prior regulation should be applied to 
rate the Veteran's disability for periods preceding the effective 
date of the regulatory change.  The effective date of a 
liberalizing law or VA issue is no earlier than the effective 
date of the change.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2009).

On VA examination in November 2006, the Veteran complained of 
occasional pain about the scar site, but no other complications.  
The examiner found no abdominal tenderness, no mass, no bruits, 
and no nodes.  There was no hernia about the appendectomy scar.  
The scar was in the right lower quadrant, horizontally placed, 
measuring 7 centimeters.  The scar was not adherent, of normal 
texture, with no skin breakdown, no depression of the scar, no 
tissue loss, and no edema or keloid formation.  The scar was 
white in color and slightly lighter than adjacent skin.  There 
was no disfigurement.

All versions of Diagnostic Code 7800 pertinent to this claim 
require involvement of the head, face, or neck, which is not at 
issue here.  All versions of Diagnostic Code 7801 require 
involvement of at least 12 square inches (77 sq. cm), which is 
not the case here.  Although the prior version of Diagnostic Code 
7802 allows for separate ratings for widely separated areas, all 
versions of that code require involvement of an area or areas of 
144 square inches (1 sq ft.) (929 sq. cm.), which is not the case 
here.  The current version of the rating schedule does not 
include Diagnostic Code 7803.  The prior version of Diagnostic 
Code 7803 applies to scars that are unstable, which is not the 
case here.  

Under the former version of Diagnostic Code 7804, in effect prior 
to October 23, 2008, for a compensable rating under Diagnostic 
Code 7804, a scar must be painful on examination.  This at least 
implies an objective standard.  A 10 percent rating is the only 
compensable rating under that version of the rating schedule.  
The current version of Diagnostic Code 7804 applies to scars that 
are unstable or painful.  There is no stated requirement of 
demonstrating pain on examination.  Where there are five or more 
scars that are unstable or painful, a 30 percent rating is 
warranted.  Where there are three or four scars that are unstable 
or painful, a 20 percent rating is warranted.  In the case of one 
or two scars that are unstable or painful, a 10 percent rating is 
warranted.  

Here, the Board finds that the criteria for a 10 percent rating 
under either version of Diagnostic Code 7804 are met.  The 
Veteran has stated that he experiences occasional pain about the 
scar.  He is competent to report his symptoms, and there is no 
reason to doubt his credibility.  The fact that such pain is 
occasional does not appear to disqualify him from a compensable 
rating.  Moreover, under the former version of the rating 
schedule, while the criteria call for notation of pain on 
examination, the Veteran reported occasional pain to the 
examiner.  The examiner did not find any tenderness at the time, 
but this is consistent with the Veteran's account of occasional 
pain.  As such symptomatology was noted on the examination 
report, the Board finds that the criteria for a 10 percent rating 
are also met under the former version of the rating schedule.  

However, a rating higher than 10 percent is not provided under 
the former version of Diagnostic Code 7804.  Under the current 
version, there is no assertion on the part of the Veteran, and no 
evidence otherwise, that would suggest more than one or two 
scars.  The November 2006 examiner noted only one scar.  As such, 
a rating higher than 10 percent is not warranted.  

When a claimant is awarded service connection and assigned an 
initial disability rating, separate disability ratings may be 
assigned for separate periods of time in accordance with the 
facts found.  Such separate disability ratings are known as 
staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 
(1999) (noting that staged ratings are assigned at the time an 
initial disability rating is assigned).  In Hart v. Mansfield, 
the Court extended entitlement to staged ratings to claims for 
increased disability ratings where "the factual findings show 
distinct time periods where the service-connected disability 
exhibits symptoms that would warrant different ratings."  21 Vet. 
App. 505, 511 (2007).  

Here, the disability has not significantly changed and a uniform 
evaluation is warranted.

Consideration of referral for an extraschedular rating requires a 
three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 
(2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 
Jul. 17, 2009).  The first question is whether the schedular 
rating adequately contemplates the Veteran's disability picture.  
Thun, 22 Vet. App. at 115.  If the criteria reasonably describe 
the claimant's disability level and symptomatology, then the 
claimant's disability picture is contemplated by the rating 
schedule, the assigned schedular evaluation is, therefore, 
adequate, and no referral is required.  If the schedular 
evaluation does not contemplate the claimant's level of 
disability and symptomatology and is found inadequate, then the 
second inquiry is whether the claimant's exceptional disability 
picture exhibits other related factors such as those provided by 
the regulation as governing norms.  If the Veteran's disability 
picture meets the second inquiry, then the third step is to refer 
the case to the Under Secretary for Benefits or the Director of 
the Compensation and Pension Service to determine whether an 
extraschedular rating is warranted. 

Here, the rating criteria clearly contemplate the Veteran's 
disability picture.  They include symptomatology of the type 
reported by the Veteran and by medical professionals on clinical 
evaluation.  Significantly, both the former and current rating 
criteria include higher ratings where symptomatology of the 
appropriate degree is demonstrated.  


ORDER

A 10 percent rating, but not higher, for appendectomy residuals 
is granted.


REMAND

In the April 2007 rating decision, the RO granted service 
connection and assigned an initial noncompensable rating for 
residuals of left 1st metacarpal fracture, pursuant to Diagnostic 
Code 5228, effective August 1, 2006.  

Diagnostic Code 5228, governs limitation of motion of the thumb.  
A zero percent rating is assignable for limitation with a gap of 
less than one inch (2.5 cm.) between the thumb pad and the 
fingers, with the thumb attempting to oppose the fingers.  A 10 
percent rating requires a gap of one to two inches (2.5 to 5.1 
cm.) between the thumb pad and the fingers, with the thumb 
attempting to oppose the fingers.  A maximum 20 percent rating is 
assigned for a gap of more than two inches (5.1 cm.) between the 
thumb pad and the fingers, with the thumb attempting to oppose 
the fingers.  38 C.F.R. § 4.71a, Diagnostic Code 5228.  

Thus, the diagnostic code assigned by the RO is applicable to the 
thumb.  Moreover, a review of the service treatment records show 
the Veteran fractured his fist metacarpal.  The January 1980 
emergency room record, refers to the radial side of the hand, 
although it does not identify which hand.  A subsequent treatment 
report identifies the left 1st metacarpal.  The following year, a 
September 1981 treatment record refers to a right thumb fracture 
5 years prior.  Although the record itself is not pertinent to 
this claim, this document clearly refers to the thumb as the 5th 
digit.  A treatment report 2 days later refers to the thumb as 
the 1st digit.  

Nevertheless, based on the diagnostic code applied, service 
connection is in effect for a fracture of the left thumb, 1st 
metacarpal.  However, the March 2007 VA examination report 
reveals that the Veteran's left index finger was examined, and 
range of motion findings for the index finger were reported.  
Significantly, the record contains no range of motion findings 
regarding the thumb that could be applied under Diagnostic Code 
5228.  As such, an examination is necessary to reach a decision 
on the claim. 

The Board also notes that the Veteran has complained of 
paresthesias in the left hand radiating into the arm, and has 
complained of numbness in the left hand.  However, a neurological 
examination has not been conducted.  

Under VA regulations, separate disabilities arising from a single 
disease entity are to be rated separately.  See 38 C.F.R. § 4.25 
(2010); see also Esteban v. Brown, 6 Vet. App. 259, 261(1994).  
However, the evaluation of the same disability under various 
diagnoses is to be avoided.  38 C.F.R. § 4.14 (2010); Fanning v. 
Brown, 4 Vet. App. 225 (1993).

Based on the Veteran's complaints, a neurological evaluation 
should be conducted; and, if appropriate, a rating assigned for 
neurological residuals.  

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to 
evaluate his residuals of left 1st metacarpal 
fracture.  The claims folders must be made 
available to and reviewed by the examiner.  
Any indicated studies should be performed.  

Based on a review of the claims file and 
service treatment records, the examiner 
should identify the appropriate digit being 
evaluated.  As numbering schemes for the 
digits appear to be inconsistent, the 
examiner should, in addition to number, 
identify the common name for the digit being 
examined, i.e., thumb, index, middle, ring, 
or little finger.  Findings pertinent to 
Diagnostic Code 5228 should be reported.  

Neurological findings pertaining to the left 
hand should also be reported.  

2.  Readjudicate the remanded claim.  If 
appropriate, assign a rating for neurological 
residuals.  If the benefit sought on appeal 
is not granted to the Veteran's satisfaction, 
he and his representative should be provided 
a supplemental statement of the case and an 
appropriate period of time for response.  The 
case should then be returned to the Board for 
further consideration, if otherwise in order.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs