Citation Nr: 1124879 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 09-48 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether the agency of original jurisdiction erred in continuing a separate noncompensable rating for appendectomy residuals under diagnostic code 7339. 2. Entitlement to an effective date earlier than August 5, 2008 for increased ratings for appendectomy residuals, including peritoneal adhesions, resection of the small bowel, and midline scar. 3. Entitlement to increased ratings for appendectomy residuals, including peritoneal adhesions, resection of the small bowel, fistula, and midline scar, rated as 20 percent disabling from August 5, 2008, 100 percent disabling under the provisions of 38 C.F.R. § 4.30, from October 10, 2008, and as noncompensable from January 1, 2009. 4. Entitlement to a total convalescence rating under 38 C.F.R. § 4.30 prior to October 10, 2008. 5. Entitlement to a total convalescence rating under 38 C.F.R. § 4.30 after January 1, 2009. 6. Entitlement to special monthly compensation based on a need for aid and attendance prior to October 10, 2008. 7. Entitlement to special monthly compensation based on a need for aid and attendance after January 1, 2009. 8. Entitlement to a total disability rating, for compensation purposes, based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran had active service from October 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. It is the responsibility of the Board to determine the issues that are properly before it. The Board has determined that the issues are as aforestated. While this varies somewhat from the issues as listed in the statement of the case and certification of issues by the RO, it is more consistent with the rating decision, notice of disagreement, substantive appeal, and hearing testimony. In December 2010, a video conference hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The transcript of the hearing is in the claims folder. The issues of entitlement to special monthly compensation based on a need for aid and attendance prior to October 10, 2008 and entitlement to a total disability rating, for compensation purposes, based on individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. A November 2008 hospitalization was for a deep vein thrombosis and pneumonia. The thrombosis was apparently caused by a PICK line for treatment of the service-connected disability. This raises a question as to whether the pneumonia and deep vein thrombosis are also residuals of the service-connected appendectomy; and, if so what rating should be assigned. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. There was no ascertainable evidence of an increase in the severity of the service-connected appendectomy residuals manifested by adhesions and small bowel resection prior to November 6, 2007. 2. As of November 6, 2007, there was ascertainable evidence that the service-connected appendectomy residuals had increased in severity and were manifested by severe adhesions. 3. The service-connected appendectomy residuals required the Veteran's hospitalization on December 13, 2007; thereafter, he was either hospitalized or convalescing due to the service-connected disability until October 10, 2008. 4. The surgeries for the service-connected appendectomy residuals did not require convalescence beyond December 31, 2008. 5. As of January 1, 2009, the service-connected appendectomy residuals were manifested by resection of the small bowel that remains symptomatic with diarrhea and anemia. 6. The continuation of a separate noncompensable rating for appendectomy residuals, under diagnostic code 7339 for a ventral hernia was error, because there was no evidence that the Veteran ever had a ventral hernia and the competent medical evidence demonstrated that there were other appendectomy residuals ratable under other diagnostic codes. 7. After December 31, 2008, the Veteran did not require the aid and attendance of another person on a regular basis. He is not permanently bedridden. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating, and not in excess thereof, for appendectomy residuals with adhesions were met as of November 6, 2007 and no earlier. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. Part 4, including §§ 3.400, 4.7, 4.114 and Code 7301 (2010). 2. The criteria for a temporary total convalescence rating were met from December 13, 2007 through October 10, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. § 3.400, 4.30 (2010). 3. The criteria for a temporary total convalescence rating were not met after December 31, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. § 3.400, 4.30 (2010). 4. The criteria for a 20 percent rating, and not in excess thereof, for the residuals of an appendectomy with adhesions, resection of the small bowel, fistula, and scarring were met as of January 1, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. Part 4, including §§ 3.400, 4.7, 4.114, 4.118 and Codes 7301, 7328, 7330 (2010). 5. It was error for the RO to continue a separate noncompensable rating under diagnostic code 7339 for the service-connected appendectomy residuals. 38 C.F.R. § 3.105(a) (2010). 6. The criteria for special monthly compensation based on a need for aid and attendance have not been met on and after January 1, 2009. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The core question of this case is whether this is a claim for increase or a claim for secondary service-connection. The effective date for secondary service-connection is the date VA receives the claim, while the effective date for an increased rating is the date that an increased disability was ascertainable, if the claim for increase is filed with VA within a year of the increase. The Veteran contends that his service-connected appendectomy residuals increased in severity and he was too ill to file his claim until August 2008. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In a letter dated in August 2008 the RO provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The initial notice letter was provided before the adjudication of his claim in March 2009. The August 2008 letter also provided notice regarding potential ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). A notice that fully complied with the requirements of the VCAA was sent to the claimant in June 2009. Thereafter, he was afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. This cured any notice defects before the agency of original jurisdiction (AOJ) readjudicated the case by way of a statement of the case issued in November 2009. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has complied with the notice requirements of VCAA and has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. The Board also finds that, for the issues decided herein, all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service medical records have been obtained. His available post-service treatment records have also been obtained. His Social Security Administration medical records have been obtained. The Veteran has had a VA examination and a medical opinion has been obtained. He has also been afforded a hearing. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Background There is essentially no dispute as to the facts of this case. In December 1971, service connection was granted for an appendectomy. It was rated as noncompensable under diagnostic code 7341. That diagnostic code provided a noncompensable rating for healed postoperative wounds with no disability, a belt not indicated. A 10 percent rating required weakening of the abdominal wall and indication for a supporting belt. In June 2006, the RO issued a rating decision on the Veteran's service-connected bilateral hearing loss. At that time, diagnostic code 7341 had been discontinued. The disability was characterized as appendectomy residuals and a noncompensable rating was continued under diagnostic code 7339. Diagnostic code 7339 is for rating ventral hernias. A report from the S. S. Hospital shows the Veteran was admitted on November 6, 2007 on referral by his private physician for evaluation of periumbilical abdominal pain. He had similar symptoms from a bowel obstruction several years earlier. Computerized tomography (CT) revealed some changes in the sigmoid colon consistent with old diverticular changes or possibly mild diverticulitis. There was also evidence of cholelithiasis. He was discharged home on November 8, 2007. At that time a private physician, D. S. H., M.D., expressed the opinion that the Veteran had a possible early bowel obstruction, most likely secondary to intraperitoneal adhesions from prior surgery. The right upper quadrant abdominal pain continued and the Veteran was readmitted to the S. S. hospital on December 13, 2007 for a laparoscopic cholecystectomy. During the surgery, visualization of the left colon disclosed an extensive amount of inferior abdominal adhesions. Following surgery, the Veteran developed anemia secondary to hemorrhage-hematoma. This required further surgery on December 15, 2007. It was noted that the major portion of the blood clot was around the periumbilical area, where there still existed some adhesions to his prior appendectomy incision. The adhesions were taken down, then the hematoma was entered and drained. The discharge summary, dated December 21, 2007, reports there was no obvious source of the hemorrhage, except for the abdominal wall adhesions. He had improved after the second surgery and was given the option to stay further but chose to go home. A week later, on December 28, 2007, the Veteran returned to the private hospital with continued symptoms. It was felt he either had a small bowel obstruction or a severe postoperative ileus. The next day, a laporotomy revealed a wide spread mass of adhesions from the umbilicus distal. The adhesions were lysed at the abdominal wall. Once the adhesions were lysed, it was apparent that the Veteran had widespread extreme adhesive disease. There was an area of matted bowel from the midabdomen to the lower right quadrant. Bowel planes were essentially nonexistent from the thickened adhesions. An area of bowel had to be resected. His abdomen was left open secondary to swelling and edema. He returned to the operating room on January 2, 2008 when a small leak was noted. On January 3, 2008, the Veteran was transferred to the J. C. Medical Center for a second opinion. The discharge summary shows that further procedures were performed and the Veteran was discharged on January 28, 2008. He was to have home health care management to assist with "vac" changes, "TPN" (total perenteral nutrition), lipids, and "PEG" (percutaneous endoscopic gastrostomy) tube management. In a letter received in December 2010, a nursing supervisor confirmed that the Veteran received home care from January 28, 2008 to August 19, 2008. During the Veteran's recuperation, a claim was received on August 5, 2008. Also during his recuperation, he developed an enterocutaneous fistula that did not close. In October 2008, at the V. U. Medical Center, the fistula was repaired with reconstruction of the abdominal wall. Subsequent notes document the Veteran's recovery. However, in November 2008, he was hospitalized for pneumonia and a right upper extremity deep vein thrombosis. The Veteran had a VA examination in December 2008. The claims folder was reviewed. It was reported that the right upper extremity thrombosis was the result of the PICK (peripherally inserted catheter) line used to treat his abdominal disability. The examiner expressed the opinion that it was at least as likely as not that the residuals of intestinal surgery had its beginnings as a result of intraperitoneal adhesions from his appendectomy during service. The VA examiner reported that there was no history of nausea, vomiting or constipation. There was persistent diarrhea. It was noted that there was a history of a small bowel fistula with a fecal discharge. It had resolved and there was no current discharge. The Veteran did report current symptoms of flatulence, weakness, and fatigue. An ostomy was not present. There were no episodes of abdominal colic, nausea or vomiting, or abdominal distention consistent with partial bowel obstruction. The Veteran stated that he had lost 55 pounds over one year. His weight was reportedly 255 to 265 pounds, last documented weight was 268 pounds in March 2006. Current weight was 210 pounds. Height was 71 inches. The Veteran also reported urgency of bowel movements. The examiner considered the Veteran's overall general health to be fair. There were no signs of significant weight loss or malnutrition. There were no signs of anemia. There was no fistula, abdominal mass, or abdominal tenderness. There was a well healed midline scar measuring 20 centimeters by 2 millimeters. No herniation was noted. The abdomen had active bowel sounds with no tenderness and no organomegaly. Laboratory studies were normal except that sodium was slightly elevated at 146 compared to a normal range from 135 to 145 mEq/L. Alkaline phosphatase was high at 154 compared to a normal range from 38 to 126 U/L. Red blood cells, hemoglobin and hematocrit were low. The examiner commented that the Veteran had been unemployable from December 13, 2007 to December 2008 based on his gastrointestinal problems. He would attempt to return to part time, sedentary employment. It was felt that he should be able to perform those duties. He had poor stamina and endurance, which should continue to improve. He was unable to do any strenuous labor, including pushing, pulling, lifting, repetitive walking or climbing. He could sit for about an hour. His medication prevented him from being around moving machinery, climbing, or other activities which put him at risk for falls, lacerations or other injuries. In a March 2009 rating decision, the RO continued a noncompensable rating for the appendectomy residuals rated by analogy to diagnostic code 7399-7339. It recognized that the abdominal surgeries were due to the appendectomy residuals and granted service-connection for residuals of intestinal surgery with intraperitoneal adhesions and well healed midline scar associated with residuals of appendectomy. The disability was rated by analogy to diagnostic code 7399-7328. It was rated as 20 percent disabling from August 5, 2008, 100 percent disabling under the provisions of 38 C.F.R. § 4.30, from October 10, 2008, and as noncompensable from January 1, 2009. In September 2009, the Social Security Administration determined that the Veteran was disabled from December 13, 2007. The primary diagnosis was other disorders of the gastrointestinal system (diverticulitis) and the secondary diagnosis was affective/mood disorders. In a statement for his claim, the Veteran wrote that gall bladder and small bowel surgeries left an opening in the bowel causing him to have to use a wound vacuum for 8 months. He stated that he had the wound repaired and currently had chronic diarrhea and gas. His stomach always made loud noises. He said that he had to stay close to a bathroom, especially for the first 3 hours after getting up and after that he had a few minutes to get to one. In the evenings he had really bad gas pains. He wrote that he first became unable to work on December 13, 2007 until August 2008. He worked a partial shift in August and September 2008. He returned to work on December 8, 2008 and worked partial hours until February 22, 2009. He turned in a resignation on February 24, 2009 because he was unable to work a full week due to diarrhea and gas. He explained that his work was one week a month from 4:30 PM to 7:30 AM, Monday through Thursday and from 4:30 PM Friday to 7:30 AM Monday. He was to be on call and not continuous. He stated that he had not worked since February 22, 2009. At his December 2010 Board videoconference hearing, the Veteran and his wife testified that he had remained seriously ill following his release from the hospital in January 2008. He required extensive care by her and home nurses. He was unable to file his claim until August 2008. It was asserted that the effective date should be the date of hospitalization in November 2007. As to current symptomatology, he testified that he still had bad diarrhea, especially in the morning. He had to go to the bathroom immediately after breakfast. He might go 3, 4 or half a dozen times in the morning. It might happen sometimes in the afternoon or evening. He also had gas and bloating all the rest of the day and through the night. His wife noted that it was painful enough for him to be nauseated occasionally. He put his pain level at 2. He also had quite a bit of discomfort. He said his stomach was rolling quite a bit and making all kinds of noises and stuff. He wife noted that he had dizzy spells and weakness because she felt he was not getting proper nutrition. The food did not stay in his system long enough to absorb what he needed. Diagnostic Concerns The regulations point out that over a period of many years, a Veteran's disability claim may require reratings in accordance with changes in law, medical knowledge and his physical or mental condition. 38 C.F.R. § 4.1. The aim of any change in diagnosis should be the reconciliation and continuance of the diagnosis or etiology upon which service-connection for the disability had been granted. 38 C.F.R. § 4.13. In this case, service-connection had been granted for the residuals of the appendectomy in service. The original rating code had been discontinued and a 2006 rating decision continued a noncompensable evaluation using a diagnostic code for ventral hernia, 7339. There has never been any evidence of a ventral hernia. When the RO adjudicated the Veteran's disabilities it continued the noncompensable rating under diagnostic code 7339. The rating decision provided a long discussion as to why it was continuing the noncompensable rating, but this was mostly a recitation of the Veteran's extensive medical history and did not explain why it was continuing to rate something that clearly did not exist, especially when there were rating codes for adhesions, resection, and fistulas. The medical evidence at the time of the March 2009 rating decision contained competent medical evidence that the appendectomy residuals consisted of adhesions that were interfering with the function of the Veteran's bowels. The adhesions, and part of the bowel, had to be removed. It is interesting to note that the rating decision on this aspect of the disability referred to the previous discussion of rating under diagnostic code 7339. The decision did not adequately explain why a separate rating was being applied for these appendectomy residuals. The decision of the United States Court of Appeals for Veterans Claims (Court) in Ross v. Peake, 21 Vet. App. 528 (2008) provides guidance. In that case, the Court addressed the question of whether a claim was for secondary service-connection or for an increase. The Court explained that the provisions of 38 C.F.R. § 3.310 required VA to apply the same rules to the assignment of an effective date for secondary service-connection as it does to direct service-connection. Id, at 531. See Ellington v. Nicholson, 22 Vet. App. 141 (2007); Roper v. Nicholson, 20 Vet. App. 173, 180 (2006). The Court then went on to discuss the difference between secondary service-connection and an increase in the service-connected disability. Citing prior case law, the Court held that a claim for increased compensation is one where a veteran asserts that an already service-connected condition has worsened and not where a veteran asserts that he has incurred additional disabilities as a result of that service-connected condition. Id., at 532. The Court made a distinction between an increased disability and an additional disability. The Court noted that an additional disability is separately rated under the VA Schedule for Rating Disabilities. Id. The Court went on to point out that the heart condition, for which Mr. Ross already had service-connection, was rated under 38 C.F.R. § 4.104, Diagnostic Code 7010-7013 and the award did not result in any increase in the disability level under those criteria. Rather, the secondary depression and anxiety were rated under a diagnostic code that was separate and distinct from the one he had direct service-connection for. In applying the holding in Ross to the current case we note several things. First, it is well established that when considering an increased rating, we are not restricted to the diagnostic code that has been assigned by the RO. What constitutes the service-connected disability is determined by the wording of the grant of service connection and not by the diagnostic code assigned. 38 C.F.R. § 4.13. Thus, a claim for increase must consider all applicable rating criteria. For example, arthritis of the knee with limitation of motion could be rated as 10 percent disabling under diagnostic code 5010. For a higher rating, consideration would have to be given to other diagnostic codes, such as 5260 (limitation of flexion), 5261 (limitation of extension), and 5257 (instability). In some cases, this will result in grants under two or more rating codes, i.e. 5261 and 5257. See VAOPGCPREC 23-97 (July 1, 1997). Secondly, the abdominal disabilities are particularly intertwined so that while we can identify an increase in abdominal symptoms, it is appropriate to rate the disability under the diagnostic code that most closely addresses the gastrointestinal symptoms, rather than attempting to use several diagnostic codes. The regulations specifically address this. There are diseases of the digestive system, particularly within the abdomen, which while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently certain coexisting diseases in this area, as indicated under the instruction under the title "Diseases of the Digestive System,: do not lend themselves to distinct and separate disability evaluations. 38 C.F.R. § 4.113. The schedule of Ratings for the Digestive System provides that ratings under diagnostic codes 7301 to 7329 inclusive and 7331, 7342, 7345 and 7348 inclusive will not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.114. Thus, it would appear that the definition of an increase in Ross contemplates an increase in the rating criteria within a specific section of the rating code, rather than within a specific diagnostic code. That is, an additional disability, which would be rated under a different section of the schedule would be a secondary service-connected disability subject to the effective date rules for service connection; and, an increased disability within the same section of the rating code would be subject to the effective date rules for increases. In this case, the service-connected disability is the residuals of an appendectomy. A 2006 rating decision assigned the rating criteria for a ventral hernia. However, at that time, there was no evidence of a ventral hernia. In fact, there never has been any evidence of a ventral hernia. Service connection was in effect for appendectomy residuals. Although not apparent at the time, in 2006, those residuals consisted primarily of adhesions. As time went by the adhesions became worse until the Veteran had significant gastrointestinal symptoms and required surgery. The surgery disclosed that the adhesions had increased in severity to the point that his bowels were so completely involved that a portion had to be resected. That is, at the time of the November 2007 surgery, it was ascertainable that the appendectomy residuals had increased in severity. Thus, in March 2009, the RO should have corrected the rating code and rated the service-connected appendectomy residuals under diagnostic code 7301 for adhesions of the peritoneum, rather than continuing to rate it as a nonexistent ventral hernia. After reviewing the March 2009 rating decision in the context of the facts of this case, as well as the applicable laws, regulations, and case law, the Board finds that the RO erred in assigning separate ratings for the service-connected appendectomy residuals. The disability should have been rated as "Appendectomy residuals, including adhesions, small bowel resection, fistula, and scar" It should have been rated in accordance with diagnostic codes 7301, 7328, and 7330. The Board will consider the rating and effect dates for this disability. Effective Dates The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within a year from such date. 38 U.S.C.A. § 5110(b)(1) (West 2002). The regulation on the effective date for increases mirrors the law in stating that the effective date for an increase in disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date, otherwise, the date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2010). That is, if the service-connected disability, gets worse, the Veteran has a year from the date that it got worse to file a claim. As discussed above, this case involves a claim for increase. Since the claim was received on August 5, 2008, we can go back a year from that date to the earliest date as of which an increase is ascertainable. That would be November 6, 2007, when sugery for the Veteran's gall bladder disclosed the adhesions. Rating Criteria Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). The Board has considered all the evidence of record. Specifically, we have gone back at least a year before the date the claim was received. See 38 C.F.R. §§ 3.157, 3.400(o) (2010). However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). Mild adhesions of peritoneum are rated as noncompensable (zero percent). Moderate adhesions of peritoneum, pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension, are rated 10 percent disabling. Moderately severe adhesions of peritoneum, partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain, are rated 30 percent disabling. Severe adhesions of peritoneum, 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, are rated 50 percent disabling. This is the maximum rating available under Diagnostic Code 7301. A Note to Diagnostic Code 7301 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 (2010). Pursuant to Diagnostic Code 7328, which outlines the rating criteria for resection of the small intestine, a 20 percent evaluation is warranted when the disability is symptomatic with diarrhea, anemia, and an inability to gain weight. A 40 percent evaluation is warranted when there is a definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. A 60 percent evaluation is warranted when there is a marked interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings of material weight loss. Where residual adhesions constitute the predominant disability, rate this disability under Diagnostic Code 7301. 38 C.F.R. § 4.114 (2010). A fistula of the intestine, which is persistent, or after an attempt at operative closure will be rated as 100 percent disabling with copious and frequent, fecal discharge; as 60 percent disabling with constant or frequent fecal discharge; and as 30 percent disabling with slight infrequent discharge. If healed, it will be rated for peritoneal adhesions. 38 C.F.R. § 4.114, Code 7330 (2010). A zero percent rating is assigned under diagnostic code 7339 for postoperative ventral hernia manifested by postoperative wounds, healed, with no disability, or a belt not indicated. A 20 percent rating is assigned for a small ventral hernia not well supported by a belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of the abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for a large ventral hernia not well supported by a belt under ordinary conditions. A maximum 100 percent rating is assigned for a massive persistent ventral hernia with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. 38 C.F.R. § 4.114, Code 7339 (2010). Temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) Surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight- bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. There can be extension for 1, 2, or 3 months, and an extension of 1 or more months up to 6 months beyond the initial 6 months. See 38 C.F.R. § 4.30(a), (b) (2010). Discussion In as much as the evidence reflects changes in the disability, staged ratings have been assigned in accordance with the holdings of the Court in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007). The evidence in this case shows that there are four distinct periods to rate the disability. The first is the period prior to the November 6, 2007 when there was no ascertainable evidence that the disability had increased in severity. Consequently, a noncompensable rating is appropriately continued during that period. The second period begins on November 6, 2007 when the Veteran was hospitalized for gall bladder surgery. At that time, extensive adhesions were seen. It was determined that he had possible early bowel obstruction most likely secondary to intraperitoneal adhesions from prior surgery. This is competent and credible evidence of an ascertainable increase in the service-connected appendectomy residuals. Moreover, the record shows that while the full extent of the adhesions was not disclosed at the time of the gall bladder surgery, it would be shown that these were severe adhesions that met the criteria for a 50 percent rating, see above. This is the highest rating assignable for adhesions. To assign a higher rating, we would have to turn to the criteria for resection of the small intestine. Those criteria provide a 60 percent rating where there is marked interference with absorption and nutrition, objectively manifested by examination findings including material weight loss. While anemia and weight loss would later be manifested, they were not shown at this time. Thus, at the time of the surgery on November 6, 2007, the preponderance of evidence did not show manifestations that would approximate the criteria for a rating in excess of 50 percent. Consequently, the Board finds that a 50 percent rating under diagnostic code 7301 is warranted from the hospital admission of November 6, 2007 until the hospital admission of December 13, 2007. Beginning with the Veteran's hospital admission on December 13, 2007 there were several surgical procedures for the service-connected appendectomy residuals and essentially continuous hospitalization (except for a Christmas break) until January 28, 2008. The surgical wound was not closed at that time and he required home nursing care until mid August 2008. However, he had not finished his convalescence and it was not until he was rehospitalized in October 2008 that the wound was surgically closed. Thus, the Board finds that a temporary total rating under the provisions of 38 C.F.R. § 4.30 must be assigned from December 13, 2007 to October 10, 2008. It should be noted that during this period, the Veteran had symptoms that could be rated under diagnostic codes 7301, 7328 or 7330. However, separate ratings cannot be assigned under those codes because they would be for the same manifestations that required the Veteran's convalescence and the same manifestations cannot be compensated twice. 38 C.F.R. § 4.14 (2010). The RO has already granted a temporary total rating under the provisions of 38 C.F.R. § 4.30 based on the October 10, 2008 hospitalization. That rating is effective from October 10, 2008 to January 1, 2009. The Veteran and his wife have reported that he continues to have symptoms from his appendectomy residuals. However, there is no competent medical evidence that he requires any convalescence after January 1, 2009. Thus, a further extension of the total rating based on convalescence under Section 4.30 is not warranted. The RO assigned a noncompensable rating effective January 1, 2009. On the December 2010 Board hearing the Veteran and his wife provided credible testimony to the effect that the Veteran continued to have current symptoms of diarrhea, gas, bloating, and occasional nausea and discomfort. Similar symptoms were reported for the Social Security disability claim. On the December 2008 VA examination, persistent diarrhea and urgent bowel movements were reported. The Veteran appeared to be in fair health. There were no signs of significant weight loss or malnutrition. There were no outward signs of anemia, but the laboratory studies were consistent with anemia. These manifestations are consistent with the 20 percent criteria for resection of the small intestine under diagnostic code 7328. A higher rating under diagnostic code 7328, would require definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. In this case, the Veteran weighed about 265 pounds, which with a height of 71 inches would meet the definition of obese. He dropped 55 pounds during his ordeal. Most recent measurement shows a weight of 210 pounds and testimony indicates that weight has been stable. That would put him close to his recommended weight. Consequently, the weight loss cannot be said to be pathologic or a reflection of impairment of health. In the absence of objective evidence of impairment of health, a higher rating cannot be assigned under diagnostic code 7328. A higher rating under diagnostic code 7301 for adhesions would require moderately severe adhesions of peritoneum, partial obstruction manifested by delayed motility of barium meal. Here, there is no evidence that the Veteran continues to have any bowel obstruction. Consequently, for the period beginning January 1, 2009, a higher rating cannot be assigned under diagnostic code 7301. In reaching these evaluations, reasonable doubt has been resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). Other Criteria and Extraschedular Rating The potential applications of various provisions of Title 38 of the Code of Federal Regulations (2010) have been considered whether or not they were raised by the Veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2010). The Board finds that the Veteran's surgical scar is asymptomatic and does not meet any criteria for a compensable rating under 38 C.F.R. § 4.118. The Board also finds that the evidence of 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) (2010). While the Veteran may disagree, the preponderance of medical evidence shows that the disability manifestations are adequately compensated by the rating schedule. The evidence does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this regard, the Board finds that there has been no showing by the Veteran that his service-connected appendectomy residuals have resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. The mere assertion or evidence that a disability interferes with employment would not necessarily require extraschedular consideration. The rating schedule is itself based upon the average impairment of earning capacity due to diseases, and application of the schedule clearly recognizes that the rated disabilities interfere with employment. 38 U.S.C. § 1155. Accordingly, the fact that a disability interferes with employment generally would not constitute an "exceptional or unusual" circumstance rendering application of the rating schedule impractical. Rather, the provisions of section 3.321(b)(1) would be implicated only where there is evidence that the disability picture presented by a veteran would, in the average case, produce impairment of earning capacity beyond that reflected in VA's rating schedule or would affect earning capacity in ways not addressed in the schedule. VAOPGCPREC. 6-69 (Aug. 16, 1996). In the absence of such factors, the Board finds that the 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, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Special Monthly Compensation Based on a Need for Aid and Attendance After January 1, 2009 Special monthly compensation under the provisions of 38 U.S.C.A. § 1114(l) is payable if the Veteran who is permanently bedridden or has such significant disability as to be in need of the regular aid and attendance of another person. 38 C.F.R. § 3.350(b)(3) (2010). There is no claim or evidence that the Veteran is permanently bedridden. 38 C.F.R. § 3.352. The RO assigned special monthly compensation based on the need for regular aid and attendance from the date of the Veteran's surgery on October 10, 2008 through December 31, 2008. Whether that benefit can be extended depends on whether he actually needs the assistance of another person. The following factors are considered: inability to dress or undress himself, to keep himself ordinarily clean and presentable, frequent need of adjustment of any special prosthetic or orthopedic appliances, inability to feed himself through loss of coordination or weakness of the upper extremities, inability to attend to the wants of nature, or any incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352. The Board has reviewed the most recent VA examination in December 2008 and the transcript of the December 2010 Board hearing. The evidence does not disclose any of the factors that would indicate that the Veteran needs the regular aid and attendance of another person on a regular basis. As with any disability, someone else's assistance can be helpful and comforting. However, the extent of the Veteran's disability on and after January 1, 2009 simply does not require someone else to help dress, feed, or do other basic self care functions. The VA examination report and the hearing testimony provide a preponderance of evidence on this point and establish that the Veteran did not need the regular aid and attendance of another person after December 31, 2008. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and this issue on appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The RO should discontinue the separate noncompensable rating for appendectomy residuals under diagnostic code 7339. A compensable rating for the service-connected appendectomy residuals, prior to November 6, 2007 is denied. The service-connected appendectomy residuals with adhesions are granted a 50 percent rating effective November 6, 2007. The service-connected appendectomy residuals with adhesions, small bowel resection, fistula, and postoperative scar are granted an additional temporary total convalescence rating from December 13, 2007 to October 10, 2008. A temporary total convalescence rating after December 31, 2008 is denied. The service-connected appendectomy residuals with adhesions, small bowel resection, and postoperative scarring are granted a 20 percent rating from January 1, 2009. Special monthly compensation based on a need for aid and attendance on and after January 1, 2009 is denied. The grants herein are subject to the laws and regulations governing the payment of monetary awards. REMAND The Board has determined that this is a case involving an increased rating, rather than secondary service connection. Thus, an earlier effective date for benefits is warranted. There is evidence that the Veteran was sent home from the hospital on January 28, 2008, with several lines still in place, including a vacuum line, and that these required skilled nursing care. A home nursing care provider has attested to providing care through August 19, 2008. Based on this evidence the AOJ needs to consider special monthly compensation not only for aid and attendance, but for a higher level of care. The nursing notes should shed light on the level of care that the Veteran needed and whether his wife required training to continue that care. Consequently, further development and adjudication is indicated. The claim for TDIU should be considered in light of the grants herein. The Veteran was examined by VA in December 2008, approximately a month after his last hospitalization in November 2008. He was apparently still recuperating at that time. Subsequent statements attest to an unsuccessful attempt to return to work. A current examination is desirable to determine the extent of his service-connected gastrointestinal disability and its residuals, as well as the impact of his service-connected disabilities on his employability. Accordingly, the issues of entitlement to special monthly compensation based on a need for aid and attendance prior to October 10, 2008 and entitlement to a TDIU rating are REMANDED for the following action: 1. The AOJ should obtain the necessary releases and then request a copy of the Veteran's medical records from the home nursing care service that provided care from January to August 2008. 2. The Veteran should be scheduled for a gastrointestinal examination. The claims folder should be made available to the examiner for review in conjunction with the examination. Any tests or studies needed to respond to the following questions should be done. The examiner should provide a complete description of all current manifestations of the Veteran's gastrointestinal surgery. a. Is there diarrhea, anemia, or weight loss? If the Veteran has lost weight, is the weight loss pathologic? b. What are the current manifestations of impairment of health? If there are none, so state. c. Is there any evidence of partial bowel obstruction? Additionally, the examiner should provide an opinion with an explanation as to whether the service-connected disabilities prevent the Veteran from engaging in substantially gainful employment. 3. Thereafter, the AOJ should readjudicate these claims in light of any evidence added to the record. If any benefit sought on appeal is denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Subsequently, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2010). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs