Citation Nr: 1334294 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-05 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent disabling for cholecystectomy with residual scar. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which continued the 0 percent rating for cholecystectomy, postoperative. Subsequently, in a May 2011 rating decision, the RO increased the rating of the Veteran's service-connected cholecystectomy with residual scar to 10 percent, effective August 13, 2010, the date the Veteran filed her claim for an increased rating. The Board notes that because the increase to 10 percent did not constitute a full grant of the benefits sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). (unless a claimant expresses intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition, the VA is required to consider entitlement to all available ratings for that condition). Because the increase to 10 percent was granted from the date the Veteran filed her claim, the issue on appeal has been recharacterized as entitlement to an increased rating in excess of 10 percent disabling for cholecystectomy with residual scar . Additionally, the Veteran had filed a notice of disagreement as to the denial of service connection for manic depression in November 2010. However, in a May 2011 rating decision, the RO granted service connection for bipolar disorder and assigned a 30 percent rating effective August 13, 2010. The granting of service connection represented a full grant of benefits sought on the Veteran's pending appeal. Accordingly, the issue of entitlement to service connection for manic depression is not before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993). On her VA Form 9 dated February 2012, the Veteran did not specifically state that she was appealing the issue of cholecystectomy with residual scar and did not check the box indicating she was appealing all of the issues listed on the SOC. When listing the issues she wished to appeal, she referred to a trust fund. The RO sent the Veteran a letter dated April 2012 asking her as to whether she wished to continue on with her appeal for cholecystectomy with residual scar. The letter was returned as undeliverable. The RO then certified the appeal to the Board in October 2012, following receipt of a VA 646 from her representative. Consequently, as the RO has continued to adjudicate the issue of cholecystectomy with residual scar, the Board finds that it has waived any jurisdictional defects in the VA Form 9. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Also included in her VA Form 9 was a request for a videoconference hearing before a member of the Board. A letter notifying her of the date and place of the hearing was mailed to a San Antonio, Texas address in November 2012. However, the letter was returned as undeliverable. While the notification was not sent to the most recent address of record; however, as stated below, mail sent to the Veteran's most recent address of record has also been returned as undeliverable and the Veteran has not provided VA with a new address. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The Board notes that the Veteran has been homeless at times during the course of the appeal, and her mailing address appears to have changed several times. The most recent address of record was provided by the Veteran on her VA Form 9 in February 2012, which lists her address as the Salvation Army. The RO conducted an internet search for the Veteran's address in February 2012, and the most recent address listed was the same Salvation Army address as the Veteran had provided. However, when the RO sent the Veteran a letter in April 2012 to the Salvation Army address, it was returned as unclaimed. In June 2012, the RO contacted the Salvation Army, and were told that they could not say if the Veteran resided there. A message was left for the Veteran, but there is no notation as to whether she received the message. The RO has made numerous efforts to ascertain the Veteran's current address in this case. There is nothing in the records to indicate that the Veteran has provided VA with a new address. It bears emphasis that VA's duty to assist is not always a "one-way street." The appellant has an obligation to assist in the adjudication of her claim in notifying VA of any change in address. See Wood v Derwinski, 1 Vet. App, 190, 193 (1991). Accordingly, the Board will proceed with appellate review. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However in this case, the Veteran has not alleged and the evidence does not indicate that the Veteran is unable to maintain substantially gainful employment due to her cholecystectomy with residual scar. Accordingly, the question of entitlement to TDIU has not been inferred here. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran's cholecystectomy with residual scar is manifested by mild symptoms of constipation and avoidance of particular foods; as well as mild itching of the area of the scar several times a week, without pain or instability. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for cholecystectomy with residual scar are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7318 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A September 2010 letter, which was provided to the Veteran prior to the initial adjudication of his claim in November 2010, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating their claims, as well as regulations pertinent to the establishment of an effective date and of the disability rating . Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. The Veteran provided copies of private medical records dealing with issues of anemia and an evaluation for Hepatitis C, but these records are not pertinent to this appeal. The Veteran has not identified any relevant private treatment records that are pertinent to this appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran also has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. As such, the Board is not on notice that relevant, outstanding Social Security disability records exist in this case, and the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). A VA examination was conducted in February 2011; the examiner made all required clinical findings and discussed the functional impact of the Veteran's disability on her daily life. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). While the examination is over two years old, the Veteran has not alleged that her condition has worsened since the examination, so no valid purpose would be served by ordering a new examination in this case. The examination is fully adequate for adjudication purposes. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Pursuant to the rating schedule, cholecystectomy is rated as follows: a 0 percent rating is warranted for removal of gall bladder that is nonsymptomatic. A 10 percent rating is warranted for removal of gall bladder with mild symptoms. A 30 percent rating is warranted for removal of gall bladder with severe symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7318 (2013). The words "mild" and "severe" are not defined in the rating schedule, and the Board must evaluate all of the evidence to the end that its decisions are equitable and just. See 38 C.F.R. § 4.6 (2013). III. Analysis In her August 2010 claim for an increased rating, the Veteran stated that she had a three inch scar in the midline of her abdominal area due to her in-service gallbladder surgery. She stated that she suffered from itching of the scar on a daily basis. At a February 2011 VA examination, the Veteran complained of constipation with borborygmus, and takes the laxative Dulcolax three times a week to treat the constipation. The Veteran also stated that she avoids greasy or spicy foods, but has no nausea, vomiting, abdominal distention, or evidence of recurrent biliary tract disease. The Veteran also stated that she has mild itching in the scar area. The examiner noted that the Veteran has no current treatment except for the Dulcolax which successfully treated the constipation, and that any discomfort was not severe enough to cause incapacitation, debility, fatigue, malaise, weight loss and pain. The examiner also noted that the Veteran eats a broad diet. An abdominal examination did not show any localized areas of tenderness, organomegaly or enlarged liver. No ascites or portal hypertension was present. With regard to the scar, the Veteran complained of mild itching but no actual pain, no skin breakdown, no frequency of discomfort beyond a mild itching that occurs two or three days a week. There was no limitation of activities with the exception of heavy lifting, and no increased symptoms. On examination, the scar was noted to be superficial, in the upper midline of the abdomen. There was no pain, and no adherence to underlying tissue, and no skin breakdown. The examiner also stated that the scar was not deep, and no area of underlying scar or damage to the soft tissues was present. On review, the Board finds that the Veteran's disability picture is consistent with mild symptoms. In making this determination, the Board has considered both the lay and medical evidence of record, which shows that the Veteran suffers from constipation that is successfully controlled by medication and is not productive of any significant side effects or other health consequences. Indeed, there is no evidence of malnutrition, significant weight loss, or other such factors that would suggest severe symptomatology resulting from the cholecystectomy. Thus, the preponderance of the evidence weighs against a finding that there are severe symptoms. Accordingly, an evaluation greater than 10 percent is not warranted. Also, there is no basis for a separate rating for the Veteran's post-operative scar. The only residuals associated consist of itching of the scar area. There are no symptoms of pain or instability of the scar that would entitle the Veteran to a separate rating under the only potentially applicable diagnostic code pertaining to the rating of scar disabilities, Diagnostic Code 7804. Diagnostic Code 7804 provides that one or two painful or unstable scars warrant a 10 percent rating, three or four scars that are unstable or painful warrant a 20 percent rating, and five or more scars that are unstable or painful warrant a 30 percent rating. In sum, the 10 percent disability rating criteria of Diagnostic Code 7318 contemplates the Veteran's symptoms and a higher rating is not warranted. Staged ratings are also not warranted in this case, as the evidence shows that the Veteran's symptoms have been consistent throughout the appeal period. 38 C.F.R. § 4.71a; Hart, supra. Should the Veteran's disability picture change in the future, she may be assigned a separate or higher rating. See 38 C.F.R. § 4.1. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The schedular criteria are sufficient and adequate in this case. Diagnostic Code 7318 is very broad and allows for consideration of the Veteran's reported symptoms (constipation) and consideration of its severity. As discussed above, higher ratings are available for greater disability, but the Veteran's disability is not productive of such manifestations. Accordingly, any further discussion on extraschedular entitlement is unnecessary. ORDER A rating in excess of 10 percent disabling for cholecycstectomy with residual scar is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs