Citation Nr: 1101446 Decision Date: 01/12/11 Archive Date: 01/20/11 DOCKET NO. 06-28 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for residuals of gastrointestinal surgeries with gastroesophageal reflux disease (GERD) and constipation. 2. Entitlement to an initial disability rating in excess of 20 percent for a ventral hernia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from April 1982 to June 1985, January 1986 to January 1989, and from March 2003 to March 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from October 2005 and February 2007 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas. This claim was previously remanded by the Board in January 2009. While the Veteran's appeal was pending before the Board, the RO issued a decision in January 2010, increasing the Veteran's disability evaluation to 20 percent for his service-connected ventral hernia. Since this grant did not constitute a full grant of the benefits sought on appeal, this claim is still in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. The residuals of gastrointestinal surgeries with gastroesophageal reflux disease (GERD) and constipation are not productive of symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 2. The Veteran suffers from a large ventral hernia that is not well-supported by a belt, but he does not have a massive inoperable hernia, severe diastasis or diffuse destruction or weakening of the abdominal musculature, or significant occupational impairment. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial disability rating in excess of 40 percent for residuals of gastrointestinal surgeries with GERD and constipation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code 7329 (2010). 2. The criteria for establishing entitlement to an initial disability rating of 40 percent for a ventral hernia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code 7339 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify The Veteran's claims arise from his disagreement with the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. Duty to Assist The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied. Additionally, the Board finds there has been substantial compliance with its January 2009 remand directives. The Board notes that the Court has recently concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the appellant for a medical examination and the appellant attended that examination. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Relevant Facts The Veteran is currently service-connected for status post intestinal surgeries, gastroesophageal reflux disease (GERD) and constipation, as well as a ventral hernia. VA outpatient treatment records from May 2004 demonstrate that the Veteran had a surgical history for perforated diverticulitis. Additional surgery was performed in May 2004 for a complete bowel obstruction. The Veteran was afforded a general VA examination in July 2005. The examiner noted that the Veteran was diagnosed with acute diverticulitis with perforated sigmoid during his active military service. Several surgeries were performed, including a repair of a ventral hernia. However, the examiner indicated that the Veteran's ventral hernia had recurred. It was noted that the Veteran had flare-ups of GERD on and off since 2004. The Veteran indicated that his GERD sometimes interfered with daily activities and his occupation. The examiner noted that the Veteran did experience some lack of endurance and chronic fatigue as a result of this condition. Examination revealed a large ventral hernia with multiple surgical scars on the anterior aspect of the abdomen. Bowel sounds were slightly hyperactive on auscultation. The examiner diagnosed the Veteran with diverticulosis throughout the colon and moderate spontaneous gastroesophageal reflux. The examiner also diagnosed the Veteran with a large ventral hernia that was symptomatic. The record also contains a January 2006 private medical note from a physician with the initials V.A.D. Dr. D noted that the Veteran had a history of a colon resection and colostomy with subsequent closure of the colostomy. The Veteran subsequently developed a hernia and a bowel obstruction requiring further surgery. The Veteran described discomfort with lifting and heavy meals, and he reported being told by the Beaumont Army Medical Center that he was not a surgical candidate. Examination revealed a midline incision and two transverse incisions with a large recurrent hernia superiorly in the left upper quadrant and one in the subumbilical region. Dr. D recommended an incisional herniorrhaphy as a treatment option for the Veteran. The Veteran was afforded an additional VA examination in May 2006. The Veteran reported that he began having gastrointestinal problems during his active service when he noticed increased heartburn with esophageal dysphagia. The Veteran reported that this condition had been improving since this time, but he continued to experience symptoms when eating certain foods. He denied any nausea, vomiting, hematemesis, or melena. The examiner noted that this condition really did not incapacitate the Veteran. The Veteran also reported increased abdominal pain in May 2005 when he was subsequently diagnosed with a bowel obstruction secondary to abdominal adhesions. Surgery was performed and the Veteran was later diagnosed with a ventral hernia. The Veteran reported symptoms of pain and fullness due to his hernia. However, it was noted that there was no current treatment for this condition and that the Veteran was not using any abdominal support at this time. The examiner noted that it affected the Veteran's job in that he was not able to lift heavy objects or perform cardiopulmonary resuscitation (CPR). However, the Veteran was still able to perform his duties as a respiratory therapy technician. Examination revealed a protuberant abdomen with mild tenderness to deep palpation on both iliac fossa. The Veteran was noted to have a large surgical scar of approximately 10 inches in length that was well-healed. The Veteran also had a spraumbilical hernia that measured around two inches in diameter. The hernia was not painful to deep palpation. The examiner noted that there were no signs of intestinal herniation or any signs of strangulated hernia at the time of examination. However, the examiner indicated that the post-incisional hernia was big, and the intestines probably could protrude through this hernia with no problem. The examiner diagnosed the Veteran with asymptomatic diverticulosis with no evidence of diverticulitis. Diagnoses of asymptomatic resection of the colon with no evidence of abdominal adhesions, improved GERD secondary to a mild hiatal hernia, and post-incisional abdominal hernia were also assigned. Finally, the examiner stressed that the Veteran's GERD was actually improving and that the Veteran did not wear any belt or abdominal support for this hernia. The Veteran was most recently afforded a VA gastrointestinal examination in March 2009. The Veteran reported that he continued to have problems with his ventral hernia, experiencing pain along the abdominal region. He also reported nausea, but he denied constipation, diarrhea, hematemesis, melena or anemia. The Veteran reported that he was given a belt for his ventral hernia, but that the hernia involved a large portion and the belt did not cover the upper portion. The Veteran felt that the hernia was not well-supported by the belt under ordinary conditions. The Veteran also reported that he was unable to lift objects of 15 pounds or greater because of his hernia. The Veteran denied hospitalization, emergency room visits, or any periods of incapacitation in the previous 12 months. Examination of the abdomen revealed a well-healed 2 centimeter (cm) by 1 cm scar on the left upper quadrant from a previous colostomy incision. There was no abnormality noted in the scar, and there was no tenderness, elevation or depression, or limitation of motion associated with the scar. The Veteran also had a large ventral hernia that was 8 inches by 9 inches with Valsalva maneuver. The hernia was associated with mild tenderness in the right upper quadrant and left upper quadrant. The examiner diagnosed the Veteran with residuals of multiple abdominal surgeries with a large ventral hernia requiring a supporting belt with evidence of weakening of the abdominal wall. The examiner also diagnosed the Veteran with GERD. The examiner opined that the Veteran's disability resulted in a mild affect on his current job. The record demonstrates that the Veteran has continued to be treated by VA for his gastrointestinal symptoms. According to a March 2009 VA outpatient treatment record, the Veteran had GERD, a small hiatal hernia and a large abdominal wall hernia that were all asymptomatic. A September 2009 colonoscopy revealed diverticulosis throughout. Residuals of Gastrointestinal Surgeries The Veteran contends that he is entitled to an initial disability rating in excess of 40 percent for the residuals of his gastrointestinal surgeries. For historical purposes, the Veteran was granted service connection for the residuals of these surgeries in an October 2005 rating decision. A disability rating of 40 percent was assigned under Diagnostic Code 7329, effective as of March 20, 2005. The Veteran appealed this decision to the Board in August 2006. A 40 percent disability rating is the maximum disability rating available under Diagnostic Code 7329. See 38 C.F.R. § 4.114. However, Diagnostic Code 7346 pertaining to a hiatal hernia provides for a 60 percent evaluation with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. However, a review of the medical evidence, as discussed above, does not show that the Veteran more nearly meets the criteria for this next higher evaluation, and the Board notes that VA regulations provide that only one evaluation may be assigned for symptomatology covered under Diagnostic Codes 7329 and 7346. See 38 C.F.R. § 4.114 (Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.) There are no other Diagnostic Codes pertaining to the digestive system that would permit a higher disability rating. See id. Therefore, a higher disability rating is not permitted under the rating criteria. However, to afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 extraschedular rating. According to the July 2005 VA examination, the Veteran had intermittent symptoms of GERD with some lack of endurance and chronic fatigue as a result of this condition. It was also noted during the Veteran's May 2006 VA examination that his symptoms had improved since separation from active duty, and that this condition really did not incapacitate the Veteran. The examiner also noted that the Veteran was still able to work. The March 2009 VA examiner concluded that the Veteran's disabilities resulted in a mild impact on his employability, and the Veteran denied hospitalization, emergency room visits, or any periods of incapacitation in the previous 12 months. Finally, the Veteran testified during his October 2008 hearing that his constipation had resolved and his only remaining issues were heartburn and having to eat slowly. A 40 percent disability rating under Diagnostic Code 7229 applies when there are severe symptoms, objectively supported by examination findings. See 38 C.F.R. § 4.114. The symptomatology outlined above demonstrates that the Veteran's current symptoms cannot be classified as more than severe. Furthermore, there is no evidence of marked interference with employment or frequent periods of hospitalization. The rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is, therefore, not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an initial disability rating in excess of 40 percent for residuals of gastrointestinal surgeries with GERD and constipation must be denied. Ventral Hernia The Veteran contends that he is entitled to an initial disability rating in excess of 20 percent for a ventral hernia. For historical purposes, the Veteran was granted service connection for a ventral hernia in a February 2007 rating decision. A noncompensable disability rating was assigned under Diagnostic Code 7339, effective as of March 20, 2005. The Veteran's initial disability rating was increased to 20 percent in a January 2010 rating decision. Since this grant did not constitute a full grant of the benefits sought on appeal, this claim is still in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Under Diagnostic Code 7339, a small postoperative ventral hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt, is rated 20 percent disabling. A large postoperative ventral hernia, not well supported by belt under ordinary conditions, is rated 40 percent disabling. A massive persistent postoperative ventral hernia, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable, is rated 100 percent disabling. 38 C.F.R. § 4.114. According to the July 2005 VA examination, the Veteran suffered from a recurrent ventral hernia. The hernia was noted to be large and symptomatic. However, according to the Veteran's May 2006 VA examination, the Veteran was not receiving any current treatment for this large hernia, to include any form of belt or abdominal support. The March 2009 VA examiner, however, diagnosed the Veteran with a large ventral hernia requiring a supporting belt with evidence of weakening of the abdominal wall. This appears to be the first evidence of record demonstrating that the Veteran used a support belt for his ventral hernia. The Veteran indicated that he did not use a belt in a June 2008 statement and he made no reference to a belt during his October 2008 hearing. Based on the above evidence, the Board finds that the Veteran is entitled to an initial disability rating of 40 percent. The VA examiners of record have consistently described the Veteran's ventral hernia as "large," rather than "small." While the evidence of record does not demonstrate that the Veteran was using a belt until the March 2009 VA examination, this fact alone does not demonstrate that the Veteran is not entitled to a higher disability rating of 40 percent. A 20 percent disability rating is meant to compensate a Veteran for a small ventral hernia or postoperative wounds with weakening of the abdominal wall. 38 C.F.R. § 4.114, Diagnostic Code 7339. However, a 40 percent disability rating is meant to compensate a Veteran for a large hiatal hernia, not well supported by a belt under ordinary conditions. Id. There is no question that the Veteran has suffered from a large ventral hernia throughout the pendency of his claim, and the evidence suggests that since the Veteran has used a belt, it has not supported the hernia well. As such, the Veteran's disability is more appropriately characterized as 40 percent disabling. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to the highest available disability rating of 100 percent at any time during the pendency of his claim. As already noted, a 100 percent disability rating is warranted under Diagnostic Code 7339 when there is evidence of a massive persistent postoperative ventral hernia, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. 38 C.F.R. § 4.114. The Veteran's ventral hernia has consistently been described as "large" rather than "massive." Furthermore, while the May 2009 VA examiner concluded that there was "evidence of weakening abdominal wall," this does not demonstrate that the Veteran suffers from severe diastasis, or separation, of the abdominal muscles. The Veteran has maintained full time employment and a March 2009 VA outpatient treatment record described the Veteran's abdominal hernia as "asymptomatic." This is not suggestive of "severe" diastasis of the abdominal muscles. Finally, the evidence of record does not demonstrate that the Veteran's hernia is inoperable as a result of extensive diffuse destruction or weakening of the muscular and fascial support of the abdominal walls. According to the January 2006 private physician of record, the Veteran was a candidate for surgical intervention - specifically, an incisional herniorrhaphy. While the record does contain an August 2006 opinion from a VA physician recommending that the Veteran not undergo surgery, this was not due to extensive diffuse destruction of the abdominal muscles. Rather, it was noted that the procedure would be extremely difficult to perform due to the Veteran's surgical history, and that the risk- benefit ratio was deemed too high since the Veteran's hernia was reducible and non-painful at this time. Therefore, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability rating of 100 percent. The Board has again considered whether referral of this claim for extraschedular consideration is warranted. However, the evidence of record demonstrates that the Veteran's symptoms are reasonably described by the rating criteria. Furthermore, the May 2006 VA examiner concluded that it affected the Veteran's job in that he was not able to lift heavy objects or perform CPR. However, he was still able to work full-time. The March 2009 VA examiner also concluded that the Veteran's disabilities resulted in a mild impact on his employability, and the Veteran denied hospitalization, emergency room visits, or any periods of incapacitation in the previous 12 months. Finally, according to a February 2006 Modified Duty Agreement, while the Veteran was unable to perform certain duties, including lifting heavy objects, he was still able to maintain employment under a modified duty assignment in the respiratory department. The rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is, therefore, not warranted. The Board has also considered the numerous lay statements submitted by individuals who know the Veteran. According to one statement dated April 2006 and signed by an individual with the initials R.L.C., the Veteran was restricted at work in that he could not lift more than 5 pounds and at home because he could not mow his lawn, lift weights, or perform maintenance on his vehicles. Another statement dated April 2006 from the Veteran's supervisor indicates that the Veteran was prevented from several duties, including CPR and moving beds. Finally, the record contains an April 2006 letter from an individual with the initials H.A. According to this person, the Veteran was unable to perform all of his duties as a respiratory technician. The Board does not doubt the truthfulness of the above statements. However, the Veteran is already being compensated for significant occupational impairment, in that his ventral hernia is rated as 40 percent disabling. The evidence demonstrates that the Veteran has a job that is flexible, permitting him to continue to work full-time. The fact that the Veteran's duties have been changed does not in and of itself demonstrate entitlement to a disability rating in excess of 40 percent. As a final matter, as this issue deals with the rating assigned following the original claim for service connection, consideration has been given to the question of whether the application of staged ratings as enunciated by the Court, in the case of Fenderson v. West, would be in order. See 12 Vet. App. 119 (1999). However, at no time during the pendency of the claim has the Veteran exhibited symptoms of a massive ventral hernia, severe diastasis, or unemployability. As such, staged ratings are not appropriate. Having afforded the Veteran the full benefit of the doubt, the Board concludes that an initial disability rating of 40 percent is warranted. This claim is granted. ORDER An initial disability rating in excess of 40 percent for gastrointestinal surgeries with GERD and constipation is denied. Subject to the provision governing the award of monetary benefits, an initial disability rating of 40 percent for a ventral hernia is granted. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs