Citation Nr: 1322328 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-02 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable disability rating for a scar, status post-appendectomy, prior to January 9, 2012, and a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which continued the Veteran's noncompensable disability rating for an appendectomy scar. In a subsequent decision dated in February 2012, the RO increased the rating to 10 percent, effective from January 9, 2012. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDING OF FACT During the entire period on appeal, the Veteran's scar, status post-appendectomy, is characterized by discomfort and/or pain. CONCLUSIONS OF LAW 1. For the period of the claim, the criteria for a 10 percent disability rating for a scar, status-post-appendectomy have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). 2. The criteria for an evaluation in excess of 10 percent for a scar, status-post-appendectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a March 2009 letter advised the Veteran of the evidence and information necessary to substantiate her increased rating claim as well as her and VA's respective responsibilities in obtaining such evidence and information. The claim was last readjudicated in February 2012. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. Additionally, VA examinations were conducted in March 2009 and January 2012. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support her claim. Therefore, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Here, the Veteran alleges that her service connected appendectomy scar is more severe than her currently assigned disability ratings. Under Diagnostic Code 7801, scars other than those of the head, face, or neck that are deep and nonlinear warrant a 10 percent rating if the area is of at least 6 square (sq.) inches (39 sq. centimeters (cm)) but less than 12 sq. inches ( 77 sq. cm.). Higher ratings are assigned for greater area involvement. 38 C.F.R. § 4.118 (2012). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 1 (2012). Superficial scars other than those of the head, face, or neck, that are nonlinear are rated under Diagnostic Code 7802. Under that code, a 10 percent rating is warranted if the scar, or scars, cover(s) an area of 144 square inches (929 sq. cm.) or more. A "superficial" scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 1 (2012). For purposes of Diagnostic Codes 7801 and 7802, in pertinent part, if a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, a separate evaluation is to be assigned for the total area of the qualifying scars that affect the anterior portion of the trunk, and the total area of the qualifying scars that affect the posterior portion of the trunk. 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802, Notes 2 (2012). The separate evaluations are then combined under 38 C.F.R. § 4.25. For purposes of rating, the midaxillary line on each side separates the anterior and posterior portions of the trunk. Id. Scars that are unstable or painful are rated under Diagnostic Code 7804. Under that code, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings of 20 and 30 percent are warranted if there are three or four, or five or more, such scars, respectively. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id. If one or more scars are both unstable and painful, a 10 percent evaluation is added to the evaluation that is based on the total number of unstable or painful scars. Id. An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1 (2012). Any disabling effects of scars (including linear scars) that are not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code, to include, where applicable, diagnostic codes pertaining to limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2012). The Veteran filed a claim for an increased disability rating for her appendectomy scar in February 2009. The April 2009 rating decision on appeal continued the noncompensable disability rating pursuant to Diagnostic Code 7804. During the pendency of the appeal, a February 2012 rating decision increased the Veteran's disability rating to 10 percent, effective from January 9, 2012, the date of a VA compensation examination. In her notice of disagreement, she primarily address the circumstances surrounding her appendectomy in service and her frustration at the untimely diagnosis of an appendicitis in service, resulting in a large scar rather than the small scar that would have ensued via a laparoscopic surgery had diagnosis been timely. She complained that the scar was disfiguring and that she experiences an uncomfortable pulling sensation, itching and soreness that occurs quite often. The Veteran was initially examined in March 2009, in connection with her claim for a compensable rating. The Veteran described symptoms of pulling and an itching sensation at the scar area. She denied any functional impairment as a result of her scar. Upon physical examination, the examiner noted a depressed scar present across the lower abdomen, measuring 17 centimeters (cm) by 0.2 cm. The examiner described disfigurement, hyperpigmentation of less than six square inches and abnormal texture of less than six square inches. There was no evidence of tenderness, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypo-pigmentation, and limitation of motion. In January 2012, the Veteran was reexamined. At that time, the examiner noted the appendectomy scar was painful, but stable. The scar was linear and measured 8 cm. It was located on only the anterior portion of the trunk. The examiner also noted the Veteran's scar resulted in limitation of function because it was painful when stretched or pulled. The Board notes VA treatment records, dated through August 2012 are associated with the Veteran's physical and virtual claims folders. In a July 2010 VA treatment report, the Veteran reiterated similar complaints to the clinicians as she reported on her notice of disagreement. At that time she was noted to be ambulatory with a normal tandem gait. No specific findings regarding the scar were noted. The remaining records do not reveal complaints or treatment for her scar. Upon review of the record, the Board notes the March 2009 VA examination noted the Veteran reporting a pulling sensation and itching. The Veteran's July 2009 notice of disagreement described an uncomfortable pulling sensation, itching and soreness with her scar. Her VA Form 9 again indicated discomfort when exercising or stretching. The January 2012 VA examination also notes that the scar is painful. As such, considering the totality of the evidence including the lay statements and the objective findings, the Board finds the symptoms of the Veteran's scar more nearly approximate the criteria for the 10 percent rating under Diagnostic Code 7804 for the entire period on appeal. However, there is no evidence of instability of the scar, or multiple service-connected scars, under which to assign a higher rating pursuant to Diagnostic Code 7804. Similarly, the Veteran's scar is described, at most, as 17 cm. in length. As such, there is also no evidentiary basis for a higher evaluation under Diagnostic Codes 7801 or 7802. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence, to include functional impairment per Diagnostic Code 7805. The Board has considered the Veteran's subjective reports of a pulling or stretching sensation, itching, and discomfort or pain in the scar during activities in assigning the 10 percent rating for the entire period of the claim. To the extent her subjective complaints of disfigurement are not considered in the rating criteria for an abdominal scar, there is no indication in the record that the scar results in marked interference with employment or frequent hospitalizations. Indeed, she noted in letters that she continues to be able to exercise and her treatment records reflect no treatment for the scar. Accordingly, the Board finds that referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In sum, after resolving all doubt in the Veteran's favor, the Board finds the disability picture imposed by the Veteran's most nearly approximates the criteria contemplated by the 10 percent schedular rating pursuant to Diagnostic Code 7804 for the period prior to January 9, 2012. See 38 C.F.R. § 4.118a, Diagnostic Code 7804 (2012). However, the preponderance of the evidence is against a rating in excess of 10 percent at any time during the course of the appeal. ORDER For the period of the claim prior to January 9, 2012, entitlement to a disability rating of 10 percent for scar, status post-appendectomy is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Entitlement to a disability rating in excess of 10 percent for scar, status post-appendectomy is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs