Citation Nr: 18143912 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-06 151 DATE: October 22, 2018 ORDER Entitlement to an initial 30 percent rating for post-operative scars of the abdomen is granted. REMANDED Entitlement to an initial compensable rating for residuals of cholecystectomy is remanded. Entitlement to an initial compensable rating for hemorrhoids is remanded. Entitlement to an initial rating in excess of 30 percent for adjustment disorder with anxiety is remanded. FINDING OF FACT For the entire period on appeal, the evidence is in equipoise that the Veteran’s post-operative scars of the abdomen are painful scars. CONCLUSION OF LAW The criteria for an initial 30 percent rating, the highest rating possible, for service-connected status post appendectomy scars have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 2004 to March 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in June 2018. A transcript of the hearing has been associated with the claims file. 1. Entitlement to an initial 30 percent rating – the highest rating possible - for post-operative scar in the abdomen is granted. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, 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. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; 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). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 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. The Veteran’s service-connected status post scars of the abdomen have been evaluated under Diagnostic Code 7804. Diagnostic Code 7804 provides a 10 percent rating for one or two unstable or painful scars. A 20 percent rating is warranted for three or four unstable or painful scars. A 30 percent rating is warranted for five or more unstable or painful scars. At the outset, the Veteran filed his claim in February 2014. A review of the treatment records shows that the Veteran underwent a laparoscopic cholecystectomy in November 2013. See February 2014 STR – Medical – Photocopy. The Veteran was noted to have five scars on the right abdomen. See June 2014 STR. About a month after the surgery, the Veteran complained of persistent pain at the incision site. See February 2014 STR – Medical – Photocopy. In the May 2014 VA examination, the examiner affirmed that the Veteran had five small scars over the anterior abdomen. The examiner noted that the scars healed but that scar #3 and scar #5 produced mild pain. The examiner determined that the Veteran has no unstable scars. The scars were not found to limit function, and did not limit his ability to work. In the June 2018 hearing, the Veteran stated that his five scars are so close in proximity that when one scar is being touched the whole area and the other scars would hurt. The Veteran further clarified that his scars would hurt on touch and from movement, such as twisting. Based on the records, the Board finds the Veteran has five painful scars from his 2013 laparoscopic cholecystectomy. The Board notes that the treatment records show that the Veteran complained of pain in the incision site. See February 2014 STR – Medical – Photocopy. The Board acknowledges that in the May 2014 VA examination the Veteran was noted to have two painful scars. However, as the scars are close in proximity and the Veteran attested to pain in all five scars, in the light most favorable to the Veteran, the Board affords the Veteran a rating of 30 percent, the highest rating possible, under Diagnostic Code 7804. REASONS FOR REMAND The Board’s review of the claims file reveals that further action on the claims of entitlement to an initial compensable rating for residuals of cholecystectomy and hemorrhoids and entitlement to an initial rating in excess of 30 percent for adjustment disorder with anxiety is needed. In the June 2018 hearing, the Veteran alleged worsening of his residuals of cholecystectomy, hemorrhoids, and adjustment disorder. Specifically, regarding residuals of a cholecystectomy, the Veteran attested that he would have heartburn, chest tightening, nausea, and vomiting about three times a week. As for his hemorrhoids, the Veteran stated that since the May 2014 VA examination, his condition worsened as he now has blood stains in his underwear and blood leakage when passing gas. The Veteran also reported seeing streaks of blood when wiping, burning sensation when showering, and having extreme cases about once every two months. As for the adjustment disorder, the Veteran stated that his mental disability worsened as he endorsed symptoms such as outbursts of anger, increased anxiety, social avoidance, and feeling of worthlessness. Based on the foregoing, the Board finds that a new VA examination is warranted to evaluate the current severity of his disabilities. The matters are REMANDED for the following action: 1. Obtain all updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to evaluate the current severity of his residuals of cholecystectomy, hemorrhoids, and adjustment disorder. Furnish the Veteran’s claims file, including a copy of this remand, to the examiner. The examiner should specifically state that the entire claims file has been reviewed, including this remand order. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation, to include the impact of his employment. Any testing deemed necessary should be performed. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel