Citation Nr: 1751070	
Decision Date: 11/08/17    Archive Date: 11/17/17

DOCKET NO.  12-00 082	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for residuals of a suprapubic (abdominal) scar.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel



INTRODUCTION

The Veteran honorably served on active duty in the United States Army from September 1974 to February 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for residuals of an abdominal scar and denied service connection for degenerative joint disease of the lumbar spine with spina bifida occulta.

In her December 2011 substantive appeal, the appellant indicated that she would like to testify before a Veterans Law Judge (VLJ) at a videoconference hearing.  In December 2013, VA mailed a letter to the appellant confirming that her videoconference hearing was scheduled for January 2014.  Following that letter and in the same month, the appellant indicated that she did not wish to "personally appear before [a] traveling member of the [Board]" as scheduled in January 2014, that she wished VA to "cancel [her scheduled] hearing," and that she would like VA to "render a decision based on the cumulative evidence of record."  Later in the month, the appellant submitted a form in which she checked the box corresponding to "I decline this video hearing and prefer to wait for a future visit by a member of the Board of Veterans' Appeals."  In January 2014, VA mailed a second letter to the appellant stating that she has a videoconference hearing scheduled in the same month.  VA also attempted to reach the appellant by telephone to confirm the appointment.  The appellant did not appear at the January 2014 videoconference hearing. The following day, the appellant resubmitted the December 2013 statement indicating that she did not wish to personally appear before a VLJ, that she wished VA to cancel her hearing, and that she would like VA to "render a decision based on the cumulative evidence of record."  Based on the latest correspondence from the appellant, the Board finds that there is no pending hearing request.

The Board considered the claims in December 2016, on which occasion they were remanded for additional development and for adjudication by the agency of original jurisdiction.

Following the December 2016 Board remand, the agency of original jurisdiction in a February 2017 rating decision granted service connection for degenerative joint disease of the lumbar spine with spina bifida occulta.  This award constitutes a full grant of the service connection benefit sought, and that issue is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date).


FINDING OF FACT

The competent and probative evidence shows that the Veteran's abdominal scar preexisted service and was not aggravated beyond its natural progression by active duty.


CONCLUSION OF LAW

The criteria for service connection for residuals of an abdominal scar have not been met.  38 U.S.C.S. §§ 1110, 1131 (LexisNexis 2016); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that she is entitled to service connection for residuals of an abdominal scar.  After reviewing the pertinent evidence of record, the Board finds that the Veteran's abdominal scar preexisted service and was not aggravated beyond its natural progression by active duty.  The reasons and bases for these decisions will be explained below.

I.  Notice and Assistance

VA has a duty to provide veterans with notice and assistance in substantiating a claim.  See 38 U.S.C.S. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

The Board has considered the appellant's appealed issue and decided on the matter based on the pertinent evidence.  Neither the appellant nor her representative has raised any other issues with respect to VA's duties, nor have any other issues been reasonably raised by the record with respect to VA's duties.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Given the above, the Board will proceed to the merits of this appeal.

II.  Service Connection for Residuals of an Abdominal Scar

A.  Legal Principles

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.S. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show "'(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

With respect to aggravation, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002).

The Board must consider all the evidence of record and make appropriate competence, credibility, and weight determinations.  See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C.S. § 5107(b); 38 C.F.R. § 3.102.

The Veteran is competent to report symptoms and experiences observable by her senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  The Board finds the Veteran credible as her statements are detailed and consistent.

B.  Service Connection Analysis

The Board finds that the evidence shows that the Veteran does not meet the requirements for service connection for residuals of an abdominal scar.

The evidence shows that the Veteran has an abdominal scar.  In February 2017, a VA examiner reported the Veteran has a residual scar.  02/10/2017, VBMS entry, C&P Examination (DBQ DERM Scars), at 2.  Thus, the Veteran's scar is considered a disability.  Therefore, the first element of Shedden, a current disability, has been satisfied.

The Veteran's entrance examination clearly notes a preexisting surgical scar on the abdomen.  05/11/2016, STR - Medical (File A), at 20.  The Veteran has not argued that the scar did not preexist service.  In fact, an operative report indicated that the Veteran underwent elective sterilization and an incidental appendectomy in May 1971, which precedes service.  Id. at 23.  The Veteran confirmed that she did have a tubal ligation in 1971 leading to her scar.  02/10/2017, VBMS entry, C&P Examination (DBQ DERM Scars), at 2.

The evidence does not show that the Veteran's preexisting abdominal scar was aggravated by an in-service event or injury.  The Veteran's exit examination makes no reference to residuals of the abdominal scar.  05/11/2016, STR - Medical (File A), at 16-17.  A February 2017 VA examiner indicated that there is no evidence that the Veteran's abdominal scar was aggravated as a result of an in-service event or injury.  02/10/2017, VBMS entry, C&P Examination (DBQ Medical Opinion), at 3.

The Board acknowledges 38 C.F.R. § 3.306(a), which provides that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that such increase is due to the natural progress of the disease.  Here, the service treatment records show no treatment, complaints, or aggravation of the Veteran's abdominal scar.  Accordingly, aggravation is not established under 38 C.F.R. § 3.306(a).


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The Board finds the preponderance of the relevant, competent evidence weighs against finding an in-service aggravation of the Veteran's abdominal scar.  The second element of service connection is not met.  Therefore, service connection for residuals of the abdominal scar is not warranted.


ORDER

Service connection for residuals of an abdominal scar is denied.




____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs