Citation Nr: 1315747 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-01 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating prior to July 10, 2012, and in excess of 10 percent from July 10, 2012, for appendectomy scar. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from June 1976 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran requested a Travel Board hearing before a Veterans Law Judge, but withdrew his request for a hearing through written correspondence, dated in November 2011. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). In a July 2012 rating decision, the RO concluded that a 10 percent rating for appendectomy scar was warranted effective July 10, 2012, the date of a VA examination. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). In this case, the Veteran has not indicated that this increased evaluation satisfies his appeal for a higher initial evaluation of his appendectomy scar. Thus, the Board concludes that the issue of entitlement to a higher initial rating for appendectomy scar remains before the Board. The Board also observes that in a January 2013 rating decision, the RO granted service connection for peritoneal adhesions as related to the service-connected appendectomy scar, evaluated as 10 percent disabling effective the date of his appendectomy scar claim, October 3, 2007. To date, the Veteran has not disagreed with the disability rating and/or effective date assigned to this disability. FINDINGS OF FACT 1. Prior to July 10, 2012, the appendectomy scar did not involve an area exceeding 6 square inches (39 sq. cm.) and was either deep or caused limited motion, was not a superficial scar which affected an area exceeding 144 square inches (39 sq. cm.), was not unstable or painful on examination, and did not cause limitation of function of the affected part. 2. Since July 10, 2012, the appendectomy scar the appendectomy scar did not involve an area exceeding 6 square inches (39 sq. cm.) and was either deep or caused limited motion, was not a superficial scar which affected an area exceeding 144 square inches (39 sq. cm.), and did not cause limitation of function of the affected part. CONCLUSIONS OF LAW 1. Prior to July 10, 2012, the criteria for an initial compensable rating for appendectomy scar were not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118 Diagnostic Codes (DCs) 7801, 7802, 7803, 7804, 7805 (2008). 2. From July 10, 2012, the criteria for a rating in excess of 10 percent for appendectomy scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118 Diagnostic Codes (DCs) 7801, 7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for appendectomy scar arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, an October 2007 letter informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in May 2008 and July 2012. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disability. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. In finding that additional pertinent records have not been obtained, the Board observes that the Veteran identified receiving treatment from D.C., M.D. and M.F., N.P. The Board observes that both providers were identified as having the same address. Although a response was only received from Dr. D.C., the Board observes that one of the treatment records had been electronically signed by M.F. As such, the Board concludes that all treatment records identified by the Veteran have been obtained. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. The Court has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's scar disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. This service-connected disability is rated as zero percent or noncompensably disabling prior to July 10, 2012, under 38 C.F.R. § 4.118, DC 7805, which evaluates impairment from other scars, and as 20 percent disabling from July 10, 2012, under 38 C.F.R. § 4.118, DC 7804, which evaluates impairment from superficial scars painful on examination. The Board notes amendments were made to the rating criteria for skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), this issue will only be evaluated under the rating criteria in effect prior to October 23, 2008. Id. See also 38 C.F.R. § 4.118. In finding that this issue will only be evaluated under the former rating criteria, as noted in the Introduction, by way of a July 2012 rating decision, the RO awarded an increased evaluation effective July 10, 2012, the date of a VA examination. In awarding a 10 percent rating, the RO utilized the rating criteria in effect since October 23, 2008, as opposed to the pre-amendment criteria. Although the RO mistakenly rated the Veteran's disability under the amended criteria, as discussed below, the Board observes that a 10 percent rating would have been warranted under the old rating criteria as well. As the claim was initially rated under the old criteria in the June 2008 rating decision on appeal, the Veteran was apprised of the former criteria in a November 2009 statement of the case, and as the evidence shows entitlement to a 10 percent rating under both criteria, the Board finds that the Veteran will not be prejudiced by the Board's rating under the 2008 criteria. Pursuant to the criteria for rating skin disabilities effective prior to October 23, 2008, scars other than the head, face, or neck, that are deep, or that cause limitation of motion warrant a 10 percent evaluation if they involve area or areas exceeding 6 square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7801 (2008). A 20 percent evaluation is warranted for area or areas exceeding 12 square inches (77 sq. cm.). Id. Scars other than the head, face, or neck, that are superficial, and do not cause limitation of motion only warrant a 10 percent evaluation if they involve areas of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2008). Note (2) which follows shows that a superficial scar is one not associated with underlying soft tissue damage. Id. Superficial scars which are unstable where, for any reason, there is frequent loss of covering of the skin over the scar, only warrant a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7803 (2008). Scars which are superficial and painful on examination only warrant a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7804 (2008). Other scars that cause limitation of function of affected part are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2008). Based on the evidence of record, the Board concludes that a compensable rating prior to July 10, 2012, and a rating in excess of 10 percent from July 10, 2012, are not warranted. Prior to July 10, 2012, the pertinent evidence of record fails to show that the Veteran's scar met any of the criteria for an initial compensable rating. The evidence does not show that the Veteran's appendectomy scar was deep or caused limitation of motion and involved an area exceeding 6 square inches (39 sq. cm.). A May 2008 VA examination revealed that the scar only measured seven and one quarter of an inch by one eighth of an inch; therefore, an area exceeding 6 square inches was not shown. Furthermore, the examiner did not opine that it was deep or caused limitation of motion. Therefore, a compensable evaluation under DC 7801 is not warranted. Although the May 2008 VA examination shows that the scar did not cause limitation of motion, and the examiner opined that there was no underlying soft tissue damage, indicating that it was superficial, it did not involve an area of 144 square inches or greater, rendering DC 7802 inapplicable. The May 2008 examiner specifically found that there was no skin ulceration or breakdown over the scar. There is no indication in the examination report that the Veteran's scar was unstable where, for any reason, there was frequent loss of covering of the skin over the scar. As such, a compensable evaluation under DC 7803 is not warranted. The Veteran reported to the May 2008 examiner that he had occasional pain at the area of the scar when tired. However, examination revealed no tenderness to palpation. Although the Veteran reported occasional pain, examination did not show that the scar was painful. Therefore, a 10 percent rating under DC 7804 for scars which are superficial and painful on examination is not warranted. Lastly, there is no indication that the Veteran's scar caused limitation of function of the affected part. The May 2008 examiner specifically found that the scar did not result in limitation of motion or loss of function. Absent limitation of function of the affected part, a compensable evaluation under DC 7805 is not warranted. Private treatment records dated prior to July 10, 2012, reflect complaints of abdominal pain in 2010, but do not contain findings indicating that the Veteran's scar warranted a compensable rating under any of the rating criteria discussed above. Accordingly, the criteria for an initial compensable rating prior to July 10, 2012, for the Veteran's appendectomy scar have not been met. 38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805. Since July 10, 2012, the pertinent medical evidence of record does not indicate that a rating in excess of 10 percent is warranted. The currently assigned 10 percent rating addresses the Veteran's scar being painful on examination in July 2012. Only DCs 7801 and 7805 provide for a rating in excess of 10 percent. A July 2012 VA examination does not show that the Veteran's scar was deep or caused limited motion. The scar was shown to be linear and 12.5 centimeters in length. As the scar was not shown to be deep or caused limited motion, the Board concludes that a rating under DC 7801 is not warranted. The July 2012 examiner found that the Veteran's scar did not result in limitation of function. Since no limitation of function was shown, a rating under DC 7805 for limitation of function of the affected part is not warranted. A November 2012 VA examination for the Veteran's peritoneal adhesions indicated that the scar was painful; no other symptoms associated with the scar were discussed. As such, this examination also fails to show that a rating in excess of 10 percent is warranted. Accordingly, the criteria for a rating in excess of 10 percent since July 10, 2012, for the Veteran's appendectomy scar have not been met. 38 C.F.R. § 4.118, DCs 7801, 7805. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's appendectomy scar symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's appendectomy scar disability has resulted in interference with employment or activities of daily life which would a warrant an initial compensable rating prior to July 10, 2012, and in excess of 10 percent from July 10, 2012, for this disability. Moreover, as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable rating prior to July 10, 2012, and in excess of 10 percent from July 10, 2012, for appendectomy scar is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs