Citation Nr: 1010571 Decision Date: 03/19/10 Archive Date: 03/31/10 DOCKET NO. 04-22 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to an initial compensable rating for the residuals of an appendectomy. 4. Entitlement to an initial rating higher than 10 percent for chronic cervical strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1992 to June 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran and his spouse testified during an August 2006 videoconference hearing before the undersigned Acting Veterans Law Judge. The Board's December 2006 decision/remand in part remanded the claims presently on appeal for further evidentiary development. The Board will decide the claim for an increased rating for the residuals of an appendectomy. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has had some pain and discomfort due to the residuals of an appendectomy, but no further symptomatology such as disturbance of motility, or reflex disturbances to warrant application of the rating criteria based upon peritoneal adhesions. 2. The operative scar from an appendectomy does not meet the minimum requirements for a compensable rating based on surface area. There is no indication of scar instability, or pain on examination. There also is no functional limitation from the scar. CONCLUSION OF LAW The criteria for an initial compensable rating for the residuals of an appendectomy are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7301; 4.118, Diagnostic Codes 7801- 7805 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans' Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2009), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 CFR 3.159(b)(1). The RO has informed the Veteran of what evidence would substantiate the claim on appeal through VCAA notice correspondence dated from January 2007 and December 2002. The May 2004 Statement of the Case (SOC) explained the general criteria to establish a claim for entitlement to an increased disability rating. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining further VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the initial December 2002 VCAA notice correspondence was sent before issuance of the rating decision on appeal, and met the standard for timely notice. The January 2007 notice correspondence did not comport with this standard. However, the Veteran has had an opportunity to respond to the relevant VCAA notice in advance of the July 2009 Supplemental SOC (SSOC) readjudicating the claim. There is no indication of any further available evidence or information to be associated with the record. The Veteran has therefore had the full opportunity to participate in the adjudication of the claim. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The RO has taken appropriate action to comply with the duty to assist the Veteran through arranging for him to undergo a VA examination. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The Veteran has provided several personal statements. He has testified during an August 2006 Board videoconference hearing. The record as it stands includes sufficient competent evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. § 4.1 (2009). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. The RO has evaluated the Veteran's residuals of an appendectomy as noncompensable in accordance with 38 C.F.R. § 4.114, Diagnostic Code 7301 pertaining to adhesions of the peritoneum. The diagnostic code on occasion has been incorrectly listed as Diagnostic Code 7508 for nephrolithiasis (kidney stones). This would not apply as the Veteran has not experienced nephrolithiasis, particularly as symptomatic of his service-connected removal of the appendix. In any event, it is clear from available documentation that the rating criteria actually applied has been Diagnostic Code 7301. Under Diagnostic Code 7301, a noncompensable rating is warranted for mild symptoms. A 10 percent rating is warranted for moderate symptoms, including pulling pain on attempting to work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is warranted for moderately severe symptoms, including partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is warranted for severe symptoms, including definite partial obstruction shown by x- ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. A note to that criteria provides that ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. 38 C.F.R. § 4.114, Diagnostic Code 7301. The Board will also consider the rating provisions for the evaluation of scars in this instance. The appendectomy procedure itself was performed during service without any internal complications, and the Veteran's current reported difficulty is with discomfort at the site of the operative scar. There is a potential basis of entitlement to separate compensation for an operative scar, apart from the surgery itself. See 38 C.F.R. § 4.14 (under the rating schedule, separate ratings may be granted for distinct manifestations, provided not contravening the principle against evaluating the same disability under different diagnoses); Esteban v. Brown, 6 Vet. App. 259 (1994). Under 38 C.F.R. § 4.118, Diagnostic Code 7801, scars other than on the head, face, or neck, that are deep or that cause limited motion, and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. According to Diagnostic Code 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. Diagnostic Code 7803 provides that a scar that is superficial and unstable warrants the assignment of a maximum 10 percent rating. Note 1 to that criteria defines an unstable scar as is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 further provides that a superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804, a scar that is superficial and painful on examination warrants the assignment of a 10 percent rating. Also, Diagnostic Code 7805 provides that other scars (not otherwise considered under the rating schedule) are to be rated on the basis of limitation of function of the affected part. The report of a February 2003 VA general medical examination indicates in part that on physical evaluation the abdomen was flat, with no tenderness. The liver and spleen were not enlarged. There were no masses or bruits. The abdominal aorta was not present. The diagnosis of several medical conditions did not identify or otherwise pertain to a prior appendectomy procedure. During the August 2006 videoconference hearing, the Veteran described having had discomfort and irritation to the operative scar area from his appendectomy when the skin came into contact with his clothes. In December 2006, the Board remanded this claim for a VA Compensation and Pension examination to determine the extent of residual scarring associated with service-connected disability. The Veteran underwent a June 2009 VA examination for the evaluation of scars. The Veteran did not report having had any pain or skin breakdown. The medical history was of a residual scar after an emergency appendectomy. The Veteran stated that the scar became irritated when it was rubbed at times by his pants or pinched. On physical examination, there was a scar present on the right lower abdomen, with a maximum width of 0.4-cm and maximum length of 7-cm. There was no tenderness on palpation, or adherence to underlying tissue. There was no underlying soft tissue damage, skin ulceration or breakdown over the scar. The scar did not result in limitation of motion or loss of function. The diagnosis was right lower appendectomy scar, asymptomatic. The competent evidence of record does not provide a basis for assignment of an initial compensable rating for the Veteran's residuals of an appendectomy. Under the rating criteria for adhesions of the peritoneum, Diagnostic Code 7301 requires that in order to apply this criteria, there must exist at least two of the following -- disturbance of motility, actual partial obstruction, reflex disturbances, or presence of pain. Here, the Veteran complains of some pain at the operative scar site, but there is no indication of additional qualifying impairment upon which to apply Diagnostic Code 7301. The VA examination showed no signs of disturbance of motility, obstruction, or reflex disturbance, nor does the Veteran allege any of the above exists. Thus, application of Diagnostic Code 7301 would not be valid in this instance. This is notwithstanding the Veteran's description of pain and discomfort at the adhesion site. Absent further initial symptomatology besides some pain, the rating provisions of Diagnostic Code 7301 cannot be objectively considered. The Board has further taken into account the criteria for the evaluation of scars. The operative scar from appendectomy site does not meet the minimum surface area requirements for a compensable rating under Diagnostic Codes 7801 or 7802. There is no indication of superficial and unstable characteristics to warrant a compensable rating under Diagnostic Code 7803. Considering Diagnostic Code 7804, the scar was not painful on examination as there was no tenderness on palpation. While the Veteran reported some discomfort from contact of the skin surface with clothes, the total lack of any pain on objective evaluation indicates the general absence of a consistently painful scar that would warrant a compensable rating under Diagnostic Code 7804. Finally, the VA examiner found there was no limitation of motion or loss of function from the scar, and hence no basis for any evaluation pursuant to Diagnostic Code 7805. Accordingly, the additional rating provisions pertinent to scars does not permit assignment of a compensable rating in this case. A noncompensable evaluation remains the proper rating for residuals of an appendectomy under the VA rating schedule. Given the absence of any incremental increases in disability since the effective date of service connection, there is no basis to assign a staged rating at any point for the disability in question. See Fenderson, supra. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, the Veteran has not shown that his service- connected residuals of an appendectomy has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular rating. A June 2009 VA examination clarified that there was no limitation of function attributable to the scar. Moreover, the Veteran remains employed on a full-time basis. The Veteran's service-connected disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for an initial compensable rating for residuals of an appendectomy. The preponderance of the evidence is unfavorable on the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A compensable rating for the residuals of an appendectomy is denied. REMAND Further evidentiary development of the claims remaining on appeal is required before issuance of a decision on these matters. As to the claimed left shoulder disability, the Veteran underwent a VA orthopedic examination in June 2009. The VA examiner indicated his review of the claims file. A medical history was noted as to an initial shoulder dislocation during service in 1993 or 1994, followed by a repeat episode in 1996. There was X-ray evidence at that time indicating some slight downsloping of the acromion consistent with impingement syndrome. The assessment was left shoulder pain. The VA examiner commented that it was likely that this shoulder pain was contributed to by shoulder dislocation beginning during the Veteran's service. The above opinion is not sufficient to substantiate an award of service connection, in that it does not conclusively identify any current disability as the basis for the claim. The manifestation of pain or discomfort alone, without an underlying diagnosed malady or condition, cannot constitute a specific disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). There is mention in passing of possible shoulder impingement, but no confirmation of the same. Thus, a current disability has not yet been established. The VA examiner's opinion purporting to link left shoulder pain with an incident of service cannot be dispositive. The Board finds that the Veteran should be afforded one further opportunity to identify pertinent medical records, whether from VA or private treatment sources, involving a current left shoulder disability. The June 2009 VA examination report refers to May 2008 rotator cuff repair surgery; however, records of this procedure have not yet been identified and associated with the record. The Veteran is requested to indicate where he underwent the May 2008 surgery, and the sources of any other post-service treatment. The RO/AMC should then obtain the requested records, based on the information received. Following this, the case should be returned to the June 2009 VA examiner for a supplemental medical opinion as to whether there is a current identifiable left shoulder disability, apart from left shoulder pain alone. Provided this is the case, the examiner should clarify whether the present diagnosed disability has a causal association with the Veteran's service. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c)(4) (2009) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Regarding the claim for service connection for a lumbar spine disability, in December 2006 the Board remanded this matter for a VA Compensation and Pension examination to address the nature and etiology of the disorder claimed. A June 2009 VA orthopedic examination report notes X-ray findings of mild degenerative joint disease at L5-S1. The diagnosis was "subjective complaints with low back pain, normal examination, but with very mild degenerative changes on X- ray." No etiology opinion was provided. This opinion is essentially indeterminate, as it does not conclusively state whether there is a current disability related to service. Assuming arguendo that there is degenerative joint disease of the lumbar spine, the issue must be further addressed of whether that disorder has a causal nexus to the Veteran's service. Hence, a supplemental opinion is also required on the examiner's opinion regarding the correct diagnosis, and if verified, whether there is any etiological relationship to service. Regarding the claim for increased rating for chronic cervical strain, the Veteran last underwent VA examination for this condition in February 2003. A more contemporaneous examination is required to obtain a complete depiction of the extent of service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, these claims are REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he identify all further sources of treatment for a current left shoulder disability, including with reference to a May 2008 rotator cuff repair procedure. Provide the Veteran with medical authorization forms to permit the release of any relevant private medical records. Then obtain the identified medical records based upon the Veteran's response. 2. The RO/AMC should return the claims folder to the VA examiner who conducted the VA examination of June 2009, and request a supplemental opinion on the following issues: a) Whether there is a confirmed diagnosis of a current left shoulder disability, apart from pain in itself, and if so whether such disability is at least as likely as not (i.e., 50 percent or greater probability) etiologically related to the Veteran's service. b) Whether there is a confirmed diagnosis of a current lumbar spine disability, apart from pain in itself, and if so whether such disability is at least as likely as not (i.e., 50 percent or greater probability) etiologically related to the Veteran's service. A clear rationale should be stated for all conclusions reached. Provided that the June 2009 examiner is not available, or is no longer employed by VA, schedule the Veteran for an orthopedic examination by an examiner who has not seen him previously, and that addresses the inquiries set forth above regarding the claimed disabilities. 3. The RO should schedule the Veteran for a VA orthopedic examination to determine the current severity of his service- connected chronic cervical strain. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. It is requested that the VA examiner indicate all present symptoms and manifestations attributable to the Veteran's service-connected chronic cervical strain. In examining the Veteran, the examiner should report complete range of motion findings for the cervical spine. The examiner should indicate whether pain or weakness significantly limits functional ability during flare-ups or when the measured joint is used repeatedly over a period of time. The examiner should also determine whether the joint exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion lost due to any weakened movement, excess fatigability or incoordination. 4. The RO should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO should readjudicate the claims of service connection for a left shoulder disability and lumbar spine disability, and for a higher initial rating for chronic cervical strain, based upon all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with an SSOC and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ K. R. FLETCHER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009). Department of Veterans Affairs