Citation NR: 9708192 Decision Date: 03/10/97 Archive Date: 03/25/97 DOCKET NO. 94-44 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for residuals of a service connected scar from an appendectomy, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Peace, Associate Counsel INTRODUCTION The veteran had active military service from February 1941 to August 1945. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a December 1993 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 1994. The statement of the case was issued in February 1994. A substantive appeal was submitted in October 1994. The veteran provided testimony before a hearing officer at the RO in April 1994. Pursuant to a statement received by the veteran’s representative received by the RO in June 1996, the veteran withdrew his request for a Travel Board hearing. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the residuals of the service connected scar from an appendectomy has worsened greater than the current evaluation. The veteran claims that he has constant abdominal pain. He maintains that when the area around the appendectomy is touched on examination, he experiences a pain around the scar that radiates to the center of his abdomen. The veteran takes Tylenol and uses a TENS unit, but the pain persists. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 of entitlement to a rating greater than 10 percent for residuals of a service connected scar from an appendectomy. FINDINGS OF FACT The veteran’s service-connected appendectomy scar is manifested by pain and tenderness upon palpation. CONCLUSION OF LAW The requirements for a rating in excess of 10 percent for residuals of a service connected scar from an appendectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.118, Diagnostic Code 7804 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. FACTUAL BACKGROUND. The veteran had active military service from February 1941 to August 1945. The service medical records show that he underwent an emergency appendectomy while on active duty. No postoperative complications were noted. A VA examination in April 1951 revealed a healed appendectomy scar. An RO decision in January 1978 granted service connection and a noncompensable rating for the scar. After the veteran filed a claim for a compensable rating and underwent a VA examination, an RO decision in December 1979 granted a 10 percent rating for the appendectomy scar. The 10 percent rating has been in effect ever since. VA outpatient treatment records, included in the claims folder in December 1984, document evidence of treatment for abdominal pain from August 1983 to September 1984. The record reflects that the veteran complained of severe abdominal pain that spread to the upper anterior chest. Tylenol is prescribed for the pain, but the etiology of the veteran’s condition was unknown. A January 1984 entry provides that it is highly unlikely that the symptoms have anything to do with the 40 year old appendectomy scar. VA treatment records, received in August 1986, demonstrate that the veteran was treated for various ailments from October 1984 to February 1986. A May 1985 entry relates that he developed a neuroma in the center of the appendectomy scar. In a VA Form 21-4138, received in August 1993, the veteran requested to have his service connected disability re- evaluated. He claimed that he was receiving treatment at the VA Medical Center (VAMC) in Rochester, and uses a Tens unit for pain. VA outpatient treatment records, dated from August 1991 to July 1993, are associated with the clinical evidence in October 1993. The treatment records relate that the veteran was diagnosed and treated for an unrelated gastrointestinal disorder. In the April 1994 hearing, the veteran continued to reiterate that he experienced constant abdominal pain around the scar site after the appendectomy was performed in service. The veteran testified that he had a constant aching for which Tylenol provided some relief. He indicated that on examination, there was severe pain when the area was touched or pressed upon. The veteran testified that he was told that his condition might be due to adhesions. Further, he indicated that a VA surgeon suggested exploratory surgery, but there was no assurance that surgical intervention would improve his condition. VA outpatient treatment records, dated in July 1993 to May 1994, were included in the claims folder in June 1994. The records reflect that the veteran was seen for gastrointestinal complaints of pain, burning sensation, and belching. A CT scan of the abdomen, performed in September 1993, showed that he had an atrophic pancreas. The veteran was diagnosed with irritable bowel syndrome. In April 1994, an entry showed that the veteran complained of pain and tenderness at the appendectomy site. The veteran was sent for a surgical consultation. The records failed to demonstrate a worsening of the appendectomy scar. In addition, a list of medications prescribed by the VA from April 1990 to April 1994 was submitted into the clinical evidence. The hearing officer determined the veteran was receiving the maximum evaluation for a tender scar. It was determined that the outpatient treatment records showed that the veteran had other gastrointestinal disabilities that were separately symptomatic, and there was no basis to award an increased evaluation. In April 1996, VA outpatient treatment records were included in the claims folder from December 1994 to December 1995. The records showed that the veteran received treatment for an orthopedic disability and chronic cholecystitis. II. LEGAL ANALYSIS. The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased evaluation is well grounded if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). In this case, the veteran has asserted that his service connected scar from an appendectomy is worse than currently evaluated, and he has thus stated a well-grounded claim. When a claimant has presented a well-grounded claim, the VA has a duty to assist in the development of facts pertaining to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996). In this case, the RO has obtained treatment records, and provided him the opportunity to testify at a personal hearing, thereby satisfying the duty to assist. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole history, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Pursuant to Diagnostic Code 7803, scars that are superficial, poorly nourished, with repeated ulceration warrant a 10 percent evaluation. Scars that are superficial, tender and painful on objective demonstration warrant a 10 percent evaluation under Diagnostic Code 7804. Other scars are rated on the basis of limitation of function of the part affected under Diagnostic Code 7805. The veteran underwent an appendectomy more than 50 years ago. Service connection and a 10 percent rating for a residual scar has been in effect for decades. A VA examination as far back as 1951 showed the scar was healed, and when the veteran complained of severe abdominal pain that spread to the upper anterior chest in the 1980s, a physician opined that it was highly unlikely that the symptoms have anything to do with the 40 year old appendectomy scar. There is medical evidence to show that the scar is symptomatic; the Board notes, for example, there is clinical evidence of a neuroma in the center of the scar, albeit dated more than 10 years ago. The appendectomy scar is rated under 38 C.F.R. § 4.118, Code 7804, which provides for a 10 percent rating when a superficial scar is tender and painful on objective demonstration. There is medical evidence to show that the scar is symptomatic but the veteran is currently receiving the maximum rating allowed for a symptomatic scar under Code 7804. The veteran contends that his appendectomy scar is productive of severe pain, itching and tenderness around the appendectomy site, with radiation of the pain to the center of the abdomen. There is medical evidence of non-service- connected gastrointestinal pathology, including an atrophic pancreas and irritable bowel syndrome, which may well account for the veteran’s abdominal symptoms but, in any event, his appendectomy scar has been well healed for decades, and the medical evidence of record shows no current functional limitation attributable to the scar other than some localized pain and tenderness of the scar itself, which is consistent with the current 10 percent rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the increased rating claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER The claim of entitlement to a rating in excess of 10 percent for residuals of a scar for an appendectomy is denied. R. F. WILLIAMS Acting Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -