Citation Nr: 1307437	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  08-08 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for an appendectomy scar.


REPRESENTATION

Appellant represented by:	Kentucky Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. McBrine, Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to January 1958. 

This matter comes to the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to an evaluation in excess of 10 percent for the Veteran's appendectomy scar.  Jurisdiction of the Veteran's claim now lies with the Louisville, Kentucky, RO. 

This matter was before the Board in March 2010 and July 2010 when it was remanded for further development.  In an April 2011 rating decision, the Veteran was awarded a 20 percent rating, effective January 23, 2006, which corresponds to the date of receipt of his claim for a higher rating.  Thereafter, the Veteran expressed his continued disagreement with his rating, and the RO responded by issuing a Statement of the Case and advising the Veteran to submit a VA Form 9 to complete his appeal.  Despite the fact that the Veteran's disagreement with the April 2011 rating decision was treated as giving rise to a new appeal, the Board finds that this matter remains on appeal from the September 2006 rating decision.  In any event, the Board notes that the Veteran was provided with a new VA examination in accordance with the July 2010 Remand instructions, and the claim was readjudicated in a February 2012 Supplemental Statement of the Case.  Therefore, the Board also finds that there has been substantial compliance with the Board's remand instructions.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

The Veteran's residuals of his service connected appendectomy scar cause limitation of flexion of the lumbar spine of no greater than 40 degrees.



CONCLUSION OF LAW

The criteria for evaluation in excess of 20 percent for the Veteran's service-connected appendectomy scar is denied.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.2, 4.3, 4.71(a), 4.118 including Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).


Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in March 2006, June 2006, May 2008 and August 2011, as well as prior Remands in this case, satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121. 

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced representative and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and relevant VA medical records are in the file.  All records identified by the Veteran as relating to the claims have been obtained, to the extent possible.  The Board finds that the record contains sufficient evidence to make a decision on the claims. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i)  (2012).  In this case, the Board notes that the Veteran was provided VA examinations during the course of this appeal, in Mach 2006,  April 2010, and August 2011.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Separate rating codes identify the various disabilities.  See 38 C.F.R. Part 4 (2012).  When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012).

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  See Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261   (1994).  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  See 38 C.F.R. § 4.14 (2012).

In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

The Veteran's scar of the right thigh due to a cyst removal is rated as 20 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7805.  That code provides that the Veteran's scar can be rated under limitation of motion of the affected part.

The applicable rating criteria for skin disorders, to include scars, are found at 38 C.F.R. § 4.118.  

During the pendency of this appeal for an increased initial rating, the criteria for evaluation of scars were amended as of October 23, 2008.  However, the revisions are applicable to applications for benefits received by VA on or after October 23, 2008.  See 73 Fed. Reg. 54,708  (Sept. 23, 2008).  

Here, VA started adjudicating the Veteran's claim prior to October 2008.  Therefore, only the pre- October 2008 version of the schedular criteria is applicable in this case. 

The remainder of the applicable rating criteria for skin disorders, to include scars, are found at 38 C.F.R. § 4.118.  

Diagnostic Code 7800 rates scars of the head, face, or neck based upon disfigurement, and does not apply in this case as the service-connected scar at issue is located on his torso. 

Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion.  Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling.  Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling.  

Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.  Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion.  Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling.  Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.  Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 

Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 

Diagnostic Code 7804 provides a 10 percent evaluation for scars that are superficial and painful on examination.  Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) provides that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation.  (See 38 C.F.R. § 4.68  of this part on the amputation rule.) 

As noted above, Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part.  38 C.F.R. § 4.118. 

In this case, the evidence of record shows that this scar affects limitation of motion of the lumbar spine.  In this regard, the schedule for rating spine disabilities based on limitation of motion of the spine provides for assignment of a 40 to 100 percent evaluation for unfavorable anklyosis of the spine. 

The rating criteria now define normal range of motion for the various spinal segments for VA compensation purposes.  Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003).

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the revised rating criteria provide a 100 percent rating for unfavorable ankylosis of the entire spine; and a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine.

The criteria for a 40 percent rating are: unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable anklyosis of the entire thoracolumbar spine.

The criteria for a 30 percent rating are: forward flexion of the cervical spine 15 degrees or less; or, favorable anklyosis of the entire cervical spine.

A 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 10 percent rating is provided for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

The Board notes that, reviewing the criteria above, the Veteran is already in receipt of the maximum rating available under the scar rating criteria, exclusive of limitation of motion.  Therefore, the only way the Veteran could be found to warrant a rating in excess of his current 20 percent evaluation for his appendectomy scar would be if he were found to have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable anklyosis of the entire thoracolumbar spine due solely to his service connected appendectomy scar.  The evidence of record simply does not show this to be the case.

In reviewing the evidence of record, the Veteran had his first VA examination for his appendectomy scar during the course of this appeal in March 2006.  At that time, the Veteran reported a somewhat uncomfortable scar which hurt particularly when he bent over.  The Veteran's appendectomy scar was measured as 9cm in length by .9cm in maximum width.  There was tenderness only on deep pressure slightly above the scar.  There was no evidence of adherence, and the texture was normal.  There was no evidence of atrophy, elevation, or depression, and the scar was not unstable.  The color was very close to that of the normal areas of the skin.  There was no area of induration or inflexibility of the skin in the area of the scar.  There was no limitation of motion or function caused by the scar.

The Veteran had a further scar examination during the course of this appeal in April 2010, with an addendum opinion offered for limitation of motion in August 2010.  The Veteran's scar was noted to be well healed, superficial, slightly darkened, and tender to touch.  There was no skin breakdown.  The Veteran reported persistent mild to moderate pain in his scar, which was exacerbated by sitting down, walking, bending and kneeling.  The pain had an intermittent stabbing sharp component which lasts a few minutes at a time.  The Veteran also reported limitation of motion including bending, squatting, and kneeling.  

On examination, the scar was noted to have a maximum width of .3 cm, and a maximum length of 9 cm.  The scar was superficial, with no inflammation, no edema, and no keloid formation.  Range of motion testing showed flexion of 0 to 60 degrees, extension of 0 to 15 degrees, right rotation to 20 degrees, left rotation to 35 degrees, and right and left lateral flexion to 20 degrees.  Pain in the scar area was noted on 60 degrees of flexion,  15 degrees of extension, and at 20 degrees of right lateral flexion.  Although the Veteran reported being retired, it was noted that this would cause problems with employment related to lifting and carrying, as well as ambulating or driving.

The Veteran most recently received a comprehensive VA examination for his scar in August 2011.  At that time, the Veteran reported constant moderate to severe pain in the area of his appendectomy scar, which increased with such activities such as bending, lifting, sitting, or standing.  Scar was tender to touch, without breakdown.  He denied edema, redness, inflammation, or keloid formation.  He related that he has been told in the past that his pain is due to adhesions from his surgery.  The Veteran's scar was linear, and measured 9 cm long.  The scar was found to limit the motion of the Veteran's lumbar spine.  Specifically, the Veteran's range of motion was flexion of 0 to 40 degrees, extension of 0 to 15 degrees, left and right lateral rotation to 20 degrees, and left and right lateral flexion of 0 to 20 degrees.  Pain of the scar with forward flexion began at 30 degrees and ended at 40 degrees, pain with extension began at 10 degrees and ended at 15 degrees, and right lateral rotation had pain starting at 20 degrees.  As to impact on employment, the examiner noted that the Veteran had increased pain at the surgical site with activities that involved lifting, carrying, and bending at the waist, or extension of the back.

Thus, at no time during the course of this appeal has to be been found to have less than 40 degrees of flexion.  While the veteran had pain at 30 degrees on his most recent examination, the Board does not find, considering his symptoms, that his limitation of motion is effectively limited to 30 degrees, such that a higher rating would be warranted.  As such, the Board finds that the preponderance of the evidence of record is against a grant of higher rating for this condition.  

Given the findings of tenderness and pain, the Board has also considered whether a separate rating of 10 percent is warranted under Diagnostic Code 7804.  However, as discussed above, the limitation of motion that supports the 20 percent assigned under Diagnostic Code 7805 is based on limitation resulting from pain.  Therefore, the Board finds that a separate 10 percent under Diagnostic Code 7804 in this case would violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 (2012).

In summary, as discussed above, the Board concludes that the preponderance of the evidence is against granting a higher disability rating.  As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim for an increased rating greater than 10 percent must be denied.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert.


Extraschedular Consideration

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589   (1991).  Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected appendectomy scar is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  There is no evidence in the medical records of an exceptional or unusual clinical picture, and these disabilities have not caused the Veteran to miss work frequently, nor have they required frequent hospitalizations.  The Board, therefore, has determined that referral of these claims for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Rice Consideration

In denying the Veteran's claim for increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  

The Board has reviewed the evidence of record and concludes that a claim for TDIU has not been raised.  While the Veteran has reported that his scar hurts him constantly, he has not indicated that he had to leave employment due to this condition.

Similarly, the remainder of the evidence of record does not raise the issue of unemployability due to these service-connected disabilities.  The veteran's most recent VA examination found that the Veteran would have some limitations on work involving physical activity, he was not found to be unemployable due to this disability.  In light of the foregoing, the Board concludes that the issue of entitlement to TDIU has not been raised in this case.


ORDER

Entitlement to an evaluation in excess of 20 percent for an appendectomy scar is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs