Citation Nr: 0813245 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 05-01 283 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable evaluation for service- connected residuals of an appendectomy scar from August 28, 2002 to May 4, 2007 and in excess of 10 percent from May 5, 2007. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active military duty from August 1998 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision issued by the RO. Via that rating decision, the RO granted service connection for an appendectomy scar to which it assigned a noncompensable evaluation, effective from the date of separation from service in August 2002. The veteran disagreed with the assigned evaluation. He had failed to report for an initially scheduled VA examination, but following such examination in May 2007, the RO subsequently granted an increased evaluation to 10 percent for a painful scar, effective from the date of the May 2007 VA examination. The issue of an increased evaluation for the principle appendectomy scar will be decided, but it appears from the evidence on file that the veteran has two additional drainage scars attributable to the in-service appendectomy surgery, and the issues of entitlement to service connection for and right drainage scar and entitlement to service connection for a left drainage scar are referred back to the RO for initial adjudication. Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDING OF FACT The service-connected appendectomy scar is 20 centimeters in length, one to three centimeters in width, and is objectively demonstrated to be painful and tender. CONCLUSION OF LAW The criteria for an evaluation of 10 percent for the service- connected appendectomy scar are met from August 28, 2002, but no higher evaluation is warranted at any time under any potentially applicable criteria. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7803, 7804, 7805 (2001), Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2007); Fenderson v. West, 12 Vet. App. 119 (1999) REASONS AND BASES FOR FINDING AND CONCLUSION Law and Regulation: VCAA and regulations implementing this liberalizing legislation are applicable to the veteran's claim. VCAA requires VA to notify claimant of the evidence necessary to substantiate their claims, and to make reasonable efforts to assist claimants in obtaining such evidence. The veteran was provided formal VCAA notice in October 2002, prior to the issuance of the rating decision now on appeal from July 2003. This notice informed him of the evidence necessary to substantiate his claim, the evidence he was responsible to submit, the evidence VA would collect on his behalf, and advised that he submit any relevant evidence in his possession. Of course, this notice was provided with respect to his then-pending claims for service connection. However, following the veteran's hearing before the undersigned in January 2006, the appeal was remanded in May 2006 for additional evidentiary development, which was completed in full. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, the veteran was provided VCAA notice with respect to his pending claim for a compensable evaluation. This notice specifically informed him of the evidence necessary to obtain a compensable evaluation, and it is certainly noteworthy that in the previously issued November 2004 Statement of the Case, the veteran was provided the schedular criteria for compensable evaluations for scars. Moreover, the veteran evidenced actual knowledge of the requirements for compensable evaluation for scars in written statements and in testimony provided the undersigned in a video conference hearing in January 2006. The service medical records were collected, and the veteran was provided a VA examination for scars with photographs, per remand directives, in May 2007. This examination was certainly adequate for rating purposes and, in fact, resulted in a compensable evaluation being awarded. The Board finds VCAA is satisfied in this appeal. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the US Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, No. 05-0355 (US Vet. App. Jan. 30, 2008) clarified VA's notice obligations in increased rating claims. Although the Board believes that the development in this case satisfies the specificity requirements of Vazquez, it is also arguable that the instant appeal originates from a grant of service connection for the disorder at issue, and that Vazquez-Flores is therefore inapplicable. The Schedule for Rating Disabilities (Schedule) will be used for evaluating the degree of disability in claims for disability compensation. The provisions of the Schedule represent the average impairment in earning capacity in civil occupations resulting from those disabilities, as far as can be determined. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more nearly approximates the criteria required for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the US Court of Appeals for Veterans Claims as "staged" ratings. Id. at 126. During the pendency of the veteran's claim, the VA's regulations dealing with rating skin disabilities, 38 C.F.R. § 4.118, were amended. See 67 Fed. Reg. 49,596 (July 31, 2002) (effective August 30, 2002) (the veteran's claim was received on August 28, 2002). However, revised statutory or regulatory provisions may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 7104(c) (West 2002); VAOPGCPREC 3-2000 (April 10, 2000); see also Rhodan v. West, 12 Vet. App. 55, 57 (1998), vacated on other grounds at 251 F.3d 166 (Fed. Cir. 1999). Prior to August 30, 2002, scars which were superficial, poorly nourished, with repeated ulceration with slight warranted a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7803. Scars which were superficial, and tender and painful objective demonstration warranted a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars were to be rated on limitation of any part affected. warranted a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7805. Subsequent to August 30, 2002, the revised Schedule provides that scars, other than of the head, face, or neck, that are deep or cause limited motion, warrant a 10 percent evaluation if they cover an area exceeding 6 square inches, and a 20 percent evaluation if they cover an area exceeding 12 square inches . 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars, other than of the head, face, or neck, that are superficial and do not cause limitation of motion, warrant a 10 percent evaluation if they cover an area or areas of 144 square inches or more. 38 C.F.R. § 4.118, Diagnostic Code 7802. Scars which are superficial and unstable where, for any reason, there is a frequent loss of covering of the skin over the scar, warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7803. Scars which are superficial and painful on examination warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars will be rated upon any limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Standard of Review: When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Analysis: The veteran filed his initial claim of service connection for an appendectomy scar in the month he was separated from service in August 2002. He was notified of a VA examination but failed to report. Based upon the service medical records alone, the RO granted service connection for an appendectomy scar with a noncompensable evaluation. At the time of the hearing, the veteran reported that he had been unable to report to the initially scheduled VA examination because he had just started a new job and he was not allowed time off. He also admitted that he made no effort to cancel or reschedule this examination. He agreed to attend a future examination. Following the Board's May 2006 remand, the veteran was provided a VA examination for scars in May 2007. This examination report indicates that the principal appendectomy scar was a vertical 20 centimeters long extending from the umbilicus to the suprapubic area, widest at three centimeters, and narrowest at one centimeter. The examiner also identified two drainage scars to the left and right of this that were two centimeters in size and circular in appearance. He wrote that there was pain and tenderness throughout the entire length and width of all of "all three scars." There was, however, no adherence to underlying tissue, and no ulceration or breakdown of the skin. All three scars were stable and there was no elevation or depression. Scars were considered superficial with no inflammation, edema, or keloid formation. They were hypopigmented when compared to normal color, but there was no area of induration or inflexibility of skin, and no limitation of motion or function caused by any scars. Photographs were taken, are included in the file, and have been considered by the Board. The Board finds that a preponderance of the evidence is against an evaluation in excess of the presently assigned 10 percent rating for the veteran's principal 20 centimeter vertical scar of the abdomen residual to the appendectomy surgery performed during service, under any applicable Schedular criteria. This currently assigned 10 percent evaluation is proper under 38 C.F.R. § 4.118, Diagnostic Code 7804, for a superficial scar which is painful on examination (under both the old and current versions of the Schedular criteria). The Board can find no basis for an evaluation for this single scar in excess of that 10 percent under any applicable Schedular criteria. It is not shown to cause limitation of motion, and it certainly does not exceed 144 square inches. It is not shown to be unstable where for any reason there is frequent loss of covering of the skin over the scar, and there is no evidence that this scar limits function of any part affected. The RO granted an increased evaluation to 10 percent from the date of the VA examination in May 2007. This is certainly because the veteran failed to appear for his initially scheduled examination. See 38 C.F.R. § 3.655 (2007) (discussing the consequences of failure to appear for a VA medical examination). The service medical records make clear that the veteran was provided an emergency appendectomy that is referred to in the operative report as "laborious" and which involved a burst appendix, necrotic tissue, and the placement of drains. The veteran claimed disability from this surgery the month he was separated from service. When VA examination was performed, the principal appendectomy scar was clearly reported to be painful and tender upon examination. Under these circumstances, the Board finds it a virtual certainty that the scar has been painful since the date of claim, and that the increased evaluation to 10 percent was warranted from the date of his initial claim in August 2002. See Fenderson v. West, 12 Vet. App. 119 (1999). The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that the service connected appendectomy scar has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision. ORDER Entitlement to an initial compensable evaluation of 10 percent for service-connected residuals of the primary appendectomy scar from August 28, 2002 is granted, but an evaluation excess of 10 percent at any time is denied. ____________________________________________ C. KEDEM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs