Citation Nr: 1338665	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-33 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial compensable rating for an appendectomy scar.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel
INTRODUCTION

The Veteran had active duty service from October 1980 to October 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

The United States Court of Appeals for Veterans Claims (Court) has held that when a Veteran claims service connection he is not claiming service connection for a specific diagnosis, but for his symptoms regardless of the diagnosis; and the claim encompasses the underlying condition, regardless of diagnosis.  Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009).  Although the Veteran's claim seeks service connection for PTSD, the record reveals a current diagnosis of anxiety disorder, not otherwise specified.  Applying the Court's ruling in Clemons, the issue on appeal encompasses service connection for any currently diagnosed psychiatric disability. 

The Board has reviewed all relevant documents in the Veterans Benefits Management System (VBMS) and Virtual VA paperless files in its consideration of the appeal.

The Veteran testified at a July 2012 Travel Board hearing before the undersigned Veterans Law Judge; a transcript of those proceedings is associated with the claims file.

The issue of whether new and material evidence has been received with respect to the issue of entitlement to service connection for left ear hearing loss has been raised by the record, but 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.  

The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran's appendectomy scar is regularly irritated and requires the Veteran to alter the way he wears his clothing.


CONCLUSION OF LAW

The criteria for an initial 10 percent rating for an appendectomy scar have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.118, Diagnostic Codes 7800-7804 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's 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 a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

The Veteran's increased initial rating claim arises from an appeal of 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.  Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007).  Therefore, no further notice is needed under VCAA.

VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination, including an August 2009 scars examination.  

The Veteran's statements in support of the claim are of record, including testimony provided at a July 2012 Travel Board hearing before the undersigned.  The Board hearing focused on the elements necessary to substantiate his increased rating claim and the Veteran, through his testimony and her representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits.  As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record.  

The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified.  For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  38 C.F.R. § 3.159(c).

Disability Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where 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; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances.  38 C.F.R. § 4.21.  Unlisted conditions may be rated by analogy.  38 C.F.R. § 4.20. 

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source.  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).  Thus, a layperson is competent to report on the onset and continuity of his symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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 Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011).  For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  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.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 (for scars of the head, face, and neck), and Codes 7801-7805 (for scars not of the head, face, and neck).  As the Veteran's claim is for an appendectomy scar, he could merit a compensable claim if the scar is deep and nonlinear and covers an area of at least 6 square inches (Diagnostic Code 7801); is superficial and nonlinear and covers an area greater than 144 square inches (Diagnostic Code 7802); or is unstable or painful (Diagnostic Code 7804).  

The Veteran underwent a scar examination in August 2009.  That examiner observed a linear scar in the right lower quadrant, 11.5 centimeters in length, 0.5 millimeters in width, that was superficial and completely healed.  There was no adherence to underlying tissue, and no redness, swelling, or edema.  The scar was not irregular, atrophic, shiny, or scaly.  The examiner did note, at the right end of the scar, "healed scratch-like marks."  The Veteran denied pain, but informed the examiner that the scar had flare-ups of itching, tenderness, and irritation, with occasional inflammation.  

On his August 2010 substantive appeal, the Veteran asserted that the scar became tender and irritated when he wore pants on or above the scar, requiring him to wear his pants lower than what was comfortable.  He asserted that a 10 percent rating is justified based on his altered behavior.  

At his Travel Board hearing, the Veteran explained that the elastic band on his underwear rubbed and irritated the scar, and had to be turned down.

The Board finds that a 10 percent rating based on a single, painful scar is warranted.  38 C.F.R. § 4.118, Diagnostic Code 7804.  The area of the scar is less than 10 square centimeters, and thus does not warrant a compensable rating under Diagnostic Codes 7801 or 7802.  Under Diagnostic Code 7804, while the scar is not "painful," the Board finds that the regular irritation of the scar is sufficient to warrant a 10 percent rating.  The fact that the scar becomes irritated, however, while not "pain" per se, is most appropriately rated under the criteria for pain.  See 38 C.F.R. § 4.20 (providing for analogous ratings).  The Veteran scratches the scar, leaving marks that are visible after healing, further suggesting that the "irritation" is sufficient to meet the requisite criteria for a painful scar.

In order to warrant a rating higher than 10 percent based on painful and/or irritated scars, there would have to be three or more ratable scars.  Such is not the case here.

The Board has also considered whether the Veteran's scar 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); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  In this case there are no exceptional or unusual factors with regard to the Veteran's scar.  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  The rating criteria reasonably describe the Veteran's symptomatology, and provide for consideration of greater disability than currently shown by the evidence.  There is no suggestion that the Veteran has required periods of hospitalization or has incurred significant interference with his employment.  His disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  



ORDER

Entitlement to an initial 10 percent rating for an appendectomy scar, and no higher, is granted, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

The Veteran's claim for an acquired psychiatric disorder must be remanded for further development, to include VA assistance in determining whether an alleged stressor can be verified.  38 C.F.R. § 3.304(f) (2013).  The Veteran's reports of his in-service stressors have evolved during the claim, making the basis for his claim unclear.  Most recently, during his July 2012 Travel Board hearing, the Veteran testified that he witnessed a motorcycle accident in which his friend, S.C., was killed.  Although it is unclear from the testimony whether S.C. was in the military, a fellow Veteran, J.C., witnessed the event.  The report of the fatal motorcycle accident has not been developed, and was not considered by the October 2009 VA psychiatric examiner.  

On remand, the Veteran should be requested to provide specific, verifiable information concerning the death of S.C., and to identify all other potential in-service stressors, as part of a completed PTSD questionnaire.  Thereafter, all appropriate development should be pursued. 

The Board acknowledges that the October 2009 examiner opined that the alleged military sexual trauma was insufficient to act as a stressor for purposes of PTSD.  That examiner, however, made clear that part of the insufficiency of the alleged sexual trauma was the Veteran's unwillingness to be more specific, be that out of embarrassment, or, as the examiner suggested, exaggeration or malingering.  As the Board is remanding the matter for development, it is appropriate that the Veteran be provided the opportunity to provide specific facts concerning the alleged in-service sexual assault such that the stressor can be verified.  

Although VA provided the Veteran a thorough psychiatric examination in October 2009, the Board finds that if the Veteran provides information that permits VA to verify any alleged stressor, he must be provided a new psychiatric examination.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination).

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a PTSD questionnaire and ask that he execute it to provide information regarding the specific stressors he believes caused his currently-diagnosed psychiatric disorder.

2.  Attempt to verify any stressors reported by the Veteran. All attempts to verify the stressors must be documented in the claims folder.

3.  Should any stressor be verified, provide the Veteran with a VA psychiatric evaluation to determine the nature and etiology of his psychiatric disability.  The examiner must review the claims file, this remand, and any relevant records in the Virtual VA system; the ensuing report should indicate that such a review occurred.  

Thereafter, provide a complete psychiatric examination of the Veteran.  The examiner must evaluate the Veteran for all psychiatric disorders currently present.  For each diagnosed psychiatric disorder the examiner must opine whether it is at least as likely as not that the disorder began during, was caused by, or is otherwise etiologically related to the Veteran's active duty service.  In providing such an opinion, the examiner must specifically consider any verified stressors.

Concerning posttraumatic stress disorder the examiner must clearly indicate if the Veteran has a valid PTSD diagnosis consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994).

The examiner must provide a complete rationale for all opinions expressed.  If the examiner cannot provide a requested opinion without resort to speculation, he or she should indicate why such an opinion would be speculative.  

The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2013).  In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

4.  After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that the examiner documented their consideration of Virtual VA.  If any report is deficient in any manner, the RO must implement corrective procedures at once.  

5.  Then, readjudicate the claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action.

The appellant has the right to submit additional evidence and argument on the matter 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. 2013).



______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs