Citation Nr: 1338683 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 11-05 339A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a higher (compensable) initial disability rating for right lower abdominal appendectomy scar. 2. Entitlement to an increased disability rating in excess of 50 percent for depressive disorder with anxiety. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1974 to March 1975 and from April 1976 to April 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2010 of the RO in Togus, Maine, and August 2010 by the RO in New York, New York. The March 2010 rating decision granted service connection for right lower abdominal appendectomy scar, assigned an initial noncompensable (0 percent) rating for that disability, and effectuated the award as of September 11, 2009. In May 2010, the Veteran disagreed with the initial rating assigned for the scar. The Veteran has appealed from the initial rating assigned for his service-connected right lower abdominal appendectomy scar. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans' Claims (Court) addressed a similar appeal and directed that it was an initial rating and specifically not a claim for an increased disability rating. The August 2010 rating decision denied an increased disability rating in excess of 50 percent for the service-connected depressive disorder with anxiety. In March 2011, the Veteran submitted a notice of disagreement (NOD) with the August 2010 rating decision denial of increase rating for depressive disorder. The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. The issue of entitlement to an increased disability rating in excess of 50 percent for depressive disorder with anxiety 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 For the entire rating period, the Veteran's service-connected right lower abdominal scar has manifested by no more than a superficial 6.0 centimeter (cm.) by 0.5 cm. linear scar on the right lower abdomen that was not painful, deep, or unstable, did not cause any functional loss, and did not cover an area of at least 144 square (sq.) inches (929 sq. cm.). CONCLUSION OF LAW For the entire initial rating period, the criteria for a higher (compensable) initial disability rating for right lower abdominal appendectomy scar have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.25, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In December 2009, VA issued the Veteran a VCAA notice which informed him of the evidence generally needed to support a claim of service connection and the assignment of a rating and effective date for an initial award of service connection, what actions he needed to undertake, and how VA would assist him in developing his claim. The December 2009 VCAA notice was issued to the Veteran prior to the March 2010 rating decision from which the instant appeal arises. The issue of entitlement to a higher (compensable) initial disability rating for right lower abdominal appendectomy scar was readjudicated in the August 2010 statement of the case (SOC). Therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Moreover, because this appeal arises in part from the Veteran's disagreement with the initial rating following the grant of service connection for scar over right lower abdomen, residual of appendectomy, no additional notice is required regarding this downstream element of the service connection claim for scar over right lower abdomen, residual of appendectomy. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C.A. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD). Regarding the duty to assist in this case, the Veteran was afforded a VA scar examination for compensation purposes in March 2010. The examination report is of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2010 examination report reflects that relevant records were reviewed, a history and complaints were taken, physical examination was conducted, and all relevant questions were answered. In May 2010, the Veteran also received a VA psychological examination for compensation purposes. The examination report discussed aspects of the Veteran's appendectomy scar, and its effect on his mental health and addressed the question of physical impairment. The May 2010 VA psychological examination report is of record. All relevant documentation, including VA treatment records, has been secured. All relevant facts have been developed. There remains no issue as to the substantial completeness of the Veteran's appeal for a higher (compensable) initial disability rating for scar over right lower abdomen, residual of appendectomy. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Initial Disability Rating for Scar Over Right Lower Abdomen Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. A scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq cm) will be assigned a 20 percent rating. A scar in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) will be assigned a 30 percent rating. A scar in an area or areas of at least 144 square inches (929 sq. cm.) or greater will be assigned a 40 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates 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 if one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating 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. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a higher (compensable) initial disability rating for scar over right lower abdomen, residual of appendectomy for any period. The evidence shows that for the entire initial rating period the Veteran's service-connected right lower abdominal scar has manifested by no more than a superficial 6.0 cm. by 0.5 cm. linear scar on his right lower abdomen that was not painful, deep, or unstable, did not cause any functional loss, and did not cover an area of at least 144 square (sq.) inches (929 sq. cm.). The report of a March 2010 VA scar examination for compensation purposes reflects that the service-connected scar over the Veteran's right lower abdomen was linear, superficial, and 6.0 cm. by 0.5 cm. in size. The scar was not found to be deep or unstable. The Veteran did not convey that the scar was painful, and there was no limitation of motion. The only symptom advanced by the Veteran was that he occasionally had a "sensation over the scar" when it rains. The scar does not limit the Veteran's daily activities or employment. As the service-connected scar is superficial, linear, and does not cover an area of at least 144 square inches (929 sq. cm.), a 10 percent rating is not warranted under Diagnostic Code 7802. 38 C.F.R. § 4.118. A higher rating under Diagnostic Code 7801 is not warranted as the scar is neither deep nor nonlinear. A higher rating under Diagnostic Code 7804 is not warranted as the scar is neither unstable nor painful. 38 C.F.R. § 4.118. Diagnostic Code 7805 directs that any disabling effect of a scar not considered by codes 7800 through 7804 shall be rated under the appropriate diagnostic code. The medical evidence does not establish any symptoms or effects of the service- connected scar outside of a "sensation over the scar" when it rains. There is no indication from the March 2010 VA scar examination that this "sensation" has any disabling effect on the Veteran. No functional loss has resulted from the scar. As the evidence shows no disabling effects not considered in the ratings provided under Diagnostic Codes 7801 through 7804, the Board finds that a higher (compensable) rating is not warranted under Diagnostic Code 7805 for any period. 38 C.F.R. § 4.118. For these reasons, the Board finds that for the entire rating period the criteria for a higher (compensable) initial disability rating for right lower abdominal appendectomy scar have not been met. As the preponderance of the evidence is against the claim for a higher rating, the claim for a higher rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. Extraschedular Consideration The Board has also evaluated whether the Veteran's claim should be referred for consideration of an extra-schedular rating for a higher (compensable) initial disability rating for right lower abdominal appendectomy scar under 38 C.F.R. § 3.321(b)(1). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating 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 extra-schedular rating. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. Diagnostic Codes 7801 through 7804 rate scar disabilities on the basis of appearance, location, size, soft tissue damage, pain, depth, and loss of covering of the skin (both subjective and objective findings). The Veteran's scar was shown to be a superficial 6.0 cm. by 0.5 cm. linear scar on his right lower abdomen that was not painful, deep, or unstable, and which did not cover an area of at least 144 square inches. These findings most closely align with the criteria for a noncompensable rating under Diagnostic Code 7802. Diagnostic Code 7805 specifically provides for the rating of all other disabling effects not provided for in Codes 7801 through 7804. No such disabling effects are present in the instant appeal. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate under Diagnostic Codes 7801 through 7804. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. The Board notes that in a March 2011 statement the Veteran contends that he received an elective in-service appendectomy in March 1977 after being diagnosed with appendicolith. He states that he only agreed to the surgery because the doctor assured him that it would alleviate his low back pain. The Veteran reports that he still suffers from low back pain, and he asserts that he is entitled to compensation for his appendectomy scar due to the "grave emotional and mental distress" he has suffered from the unnecessary surgery. At a May 2010 VA psychological examination for compensation purposes, the Veteran was diagnosed with major depressive disorder. The examiner opined that "the Veteran's current service connected psychiatric condition has increased in severity upon the Veteran's learning of an unnecessary removal of his appendix during his military service." The Veteran is currently service connected for depressive disorder with anxiety, which is rated as 50 percent disabling, which rating is based in part on symptoms of depression and anxiety. Allowing for an extra-schedular rating of the Veteran's service-connected right lower abdominal appendectomy scar due to the depression and anxiety the scar has caused him would constitute improper pyramiding, as the symptoms of depression and anxiety would then be rated twice under different disabilities. 38 C.F.R. §§ 4.14, 4.130 (2013). Because the schedular rating criteria is adequate to rate the Veteran's service connected scar disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1) . The Veteran was awarded a total disability rating based on individual unemployability (TDIU) in August 2003; therefore, the issue of entitlement to a TDIU has been rendered moot and does not need to be considered or discussed. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A higher (compensable) initial disability rating for scar over right lower abdomen, residual of appendectomy, is denied. REMAND In August 2010, the RO denied an increased rating for the Veteran's service connected depressive disorder with anxiety and continued the 50 percent rating. The Veteran's representative, in the December 2011 informal hearing presentation to the Board, argued that "the statement on VA Form 21-4138 dated March 12, 2011, and received March 14, 2011, is a notice of disagreement with the rating decision dated August 16, 2010 denying increased evaluation for depressive disorder." When considered with the evidence of record, the statement may reasonably be construed as a NOD to the August 2010 increased rating denial. No SOC was issued to the Veteran. The Court has directed that, where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a SOC addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: Issue a SOC to the Veteran which addresses the issue of entitlement to an increased disability rating in excess of 50 percent for depressive disorder with anxiety. The Veteran should be given the appropriate opportunity to respond to the SOC. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of the issue following the issuance of the SOC unless he perfects an appeal. The Veteran 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 a claim that is remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs