Citation Nr: 0810987 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-05 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial evaluation greater than 10 percent for postoperative residuals of an epigastric hernia. ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from August 2000 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, wherein the RO, in part, granted service connection for residuals of epigastric hernia operation (originally claimed as "periumbilical neuropathic" pain and hernia). An initial noncompensable evaluation was assigned, effective January 23, 2005. The veteran timely appealed the RO's February 2005 rating action to the Board. Jurisdiction of the claims file currently resides with the San Diego, California RO. By a July 2007 rating action, the RO increased the initial rating assigned to the service-connected postoperative residual of an epigastric hernia from zero to 10 percent, on the basis of a surgical scar, effective from January 23, 2005. Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In February 2008, the veteran failed to appear before a Veterans Law Judge at the San Diego, California RO. Thus, the veteran's hearing is deemed withdrawn. 38 C.F.R. § 20.704 (2007). FINDING OF FACT Since the award of service connection, the veteran's epigastric hernia scar measures one centimeter in length and is tender; additional residuals include no more than postoperative wounds that are healed with no disability or indication for the need of a supporting belt. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating higher than 10 percent for postoperative residuals of an epigastric hernia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Codes 7339 (2007); 4.118, Diagnostic Code 7804 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This appeal arises from a disagreement with an initial rating following the grant of service connection for residuals of an epigastric hernia. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, any deficiency in the VCAA notice is not prejudicial and further VCAA notice is generally not required. Dunlap v. Nicholson, 21 Vet App 112 (2007); Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006). The United States Court of Appeals for the Federal Circuit has also held that additional VCAA notice is not required when there is an appeal from the initial grant of service connection. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As this case concerns the propriety of an initial evaluation, rather than a claimed increase in an existing evaluation, it is readily distinguishable from the type of situation addressed in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that case, the Court required specific notification duties in increased evaluation cases, where a worsening had been alleged. The Court stressed the difference between the two types of claims, noting that an increased compensation claim centers primarily on evaluating the worsening of a disability that is already service connected, whereas in an initial claim for disability compensation, the evaluation of the claim is generally focused on substantiating service connection by evidence of an in-service incident, a current disability, and a nexus between the two. Id., slip. op. at 5. Thus, in view of the foregoing case precedent, the Board finds that no further VCAA notice was required once VA awarded service connection for postoperative residuals of an epigastria hernia in February 2005. Concerning VA's duty to assist the appellant with his initial evaluation claim, service medical and post-service VA and private examination and clinical treatment reports, and statements of the veteran have been associated with the claims file. In fact, in an April 2006 statement to VA, the veteran indicated that he did not have any additional evidence to submit in support of the instant claim. (See, VCAA Notice Response, dated in March 2006). In addition, although the appellant failed to appear for VA examinations in October 2004, he was afforded a VA examination in April 2005. A copy of the above-referenced VA examination report is contained in the claims file. There is no evidence or contention that his postoperative residuals of an epigastric hernia have changed since said examination. II. Relevant Laws and Regulations-Initial Evaluations General criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). 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 civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2007). 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. 38 C.F.R. § 4.7 (2007). The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]compensation for service-connected injury is limited to those claims which show present disability" and held: "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." The Court later held that the above rule is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As the disability rating at issue was assigned with the grant of service connection for postoperative residuals of an epigastric hernia, the rating must address all evidence relevant to the nature and severity of disability from the effective date of service connection and, accordingly, might be comprised of separate, or "staged," ratings based on the facts shown to exist during separate periods of time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As is noted above, service connection for residuals of an epigastric hernia was granted in this case from an effective date of January 23, 2005. Specific rating criteria By a February 2005 rating action, the RO, in part, granted service connection for postoperative residuals of an epigastric hernia operation (originally claimed as "periumbilical neuropathic" pain and hernia); an initial noncompensable evaluation was assigned, effective January 23, 2005. The RO based their determination on service medical records, reflecting that the veteran underwent an epigastric hernia operation in early November 2003. The remainder of the service medical records show that there was no evidence of any chronic disabling residuals from the epigastric hernia operation apart from abdominal pain. By a July 2007 rating action, the RO increased the initial rating assigned to the service-connected postoperative residuals of an epigastric hernia from zero to 10 percent, on the basis of a surgical scar, effective from January 23, 2005. The veteran's service-connected epigastric hernia residuals are currently rated under 38 C.F.R. § Diagnostic Codes (DCs) 7339-7804. The hyphenated diagnostic code in this case indicates that DC 7339 (for rating the epigastric hernia) and DC 7804 (for rating scars) may both be used to properly rate the disability and any residual thereof. Under Diagnostic Code 7339, a noncompensable rating is assigned for a healed, post-operative wound with no disability, belt not indicated. A 20 percent rating is assigned for a small post-operative ventral hernia, not well supported by a belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for a large hernia, not well supported by a belt under ordinary conditions. 38 C.F.R. § 4.114, Code 7339. Under DC 7804, scars that are superficial and painful on objective demonstration warrant a maximum 10 percent disability rating. 38 C.F.R. § 4.118, DC 7804 (2007). This is the highest evaluation authorized under this diagnostic code. 38 C.F.R. § 4.118, DC 7804 (2007). III. Analysis The veteran asserts that his service-connected post-operative residuals of epigastric hernia are more severe than is currently represented by the initial 10 percent disability rating assigned. After a review of the evidence of record, the Board finds that an initial evaluation in excess of 10 percent for service-connected postoperative residuals of an epigastric hernia have not been met. In reaching the foregoing determination, the Board notes that an April 2005 VA examination report reflects that aside from mild tenderness in the epigastric area, there was no other evidence of hernia recurrence or complications since the November 2003 surgery. (See, April 2005 VA examination report). Thus, in the absence of findings of greater disability, approaching that of a small, postoperative hernia that is not well-supported by a belt under ordinary conditions, or a healed hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt, the criteria for a higher initial rating under DC 7339 have not been demonstrated. In addition, there is no other diagnostic code pertaining to scars which could provide a higher disability rating. As DC 7800 is only applicable to scars affecting the head face or neck, a higher rating is not appropriate under this particular diagnostic code. 38 C.F.R. § 4.118, DC 7800 (2007). Also, consideration of the criteria under either DCs 7802 and 7803 is also not warranted, as the maximum schedular evaluation allowed under these diagnostic criteria is 10 percent. 38 C.F.R. § 4.118, DCs 7802, 7803 (2007). Under DC 7801, however, a rating in excess of 10 percent is available for scars other than on the head and face - but only if such scars are deep or cause limited motion. As the April 2005 VA examiner determined that the veteran's scar was superficial and did not involve any limiation of motion, DC 7801 is also not for application. (See, April 2005 VA examination report, reflecting that the veteran's epigastric hernia scar was noted to have been "elevated," with no evidence of limitation of motion). Even if the service- connected epigastria hernia scar was found to have been deep or to have caused limitation of motion of the affected area, it was noted to have only measured one centimeter in length. Thus, as it did not cover an area in excess of approximately 12 square inches (77 square centimeters), the criteria required for a 20 percent rating, a higher initial rating is not warranted under DC 7801. 38 C.F.R. § 4.118, DC 7801 (2007). A final analogous diagnostic code that could be used to provide the veteran with a initial rating in excess of 10 percent is DC 7805, scars, rate on limitation of motion of affected part. 38 C.F.R. § 4.118, DC 7805 (2007). As noted previously, however, as there is no evidence that the epigastric hernia scar itself limited motion of the affected area, DC 7805 is also not for application. In view of the foregoing, the preponderance of the evidence is against a rating higher than 10 percent for the postoperative residuals of an epigastric hernia under either the DC rating hernia (DC 7339) or the Codes for rating scars (DC 7801 to 7805), and the benefit-of- the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). The Board has considered whether a "staged" rating is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The record, however, shows the same level of postoperative residuals of an epigastric hernia under the rating schedule throughout the period since the effective date of service connection. It does not support assigning different percentage disability ratings during the period in question. IV. Extraschedular Evaluation In this case, the veteran's postoperative residuals of an epigastric hernia have not required any periods of hospitalization. The currently assigned initial 10 percent rating contemplates the actual impairment in occupational function caused by the above-referenced service-connected disability. There is no evidence that the veteran's postoperative residuals of epigastric hernia have caused marked interference with employment beyond that contemplated in the rating schedule. To this end, although the veteran indicated to a VA examiner in April 2005 that he was unemployed, there is no indication that said unemployment is the result of the service-connected postoperative residuals of an epigastric hernia. In view of the foregoing, the Board finds that the evidence does present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. 3.321(b)(1) (2007). Therefore, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial evaluation in excess of 10 percent for postoperative residuals of epigastric hernia is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs