Citation Nr: 1317977	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  08-01 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected coronary artery disease (CAD), hypertension (HYT), hernia, and psychiatric disability, to include medications prescribed therefor. 

2.  Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability. 

3.  Entitlement to service connection for a separated rib cage, to include as secondary to the treatment for service-connected CAD. 

4.  Entitlement to an initial compensable rating for an incisional hernia. 


REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Carole Kammel, Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to August 1981, and from September 1981 to February 1987. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from January and June 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  By the January 2007 rating action, the RO denied service connection for a right knee disability, to include as secondary to the service-connected left knee disability.  The RO also assigned a noncompensable disability rating for an incisional hernia, after granting service connection for the same.  By the June 2007 rating action, the RO denied service connection for ED and separation of the rib cage.  

In December 2011, the Board remanded the issues to the RO for additional development.  The requested development has been completed and these matters have returned to the Board for appellate consideration.  

In a February 2013 statement to the Board, the Veteran's representative waived initial RO consideration of evidence received after issuance of an August 2012 Supplemental Statement of the Case.  A remand is thereby not necessary in this instance.  38 C.F.R. § 20.1304 (2012).

Regarding the Veteran's claim for service connection for ED, to include on a secondary basis, in April 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a)  (2012).  The requested opinion has been provided and has been associated with the Veteran's VA claims folders.  Although the VHA opinion has not yet been provided to the Veteran and his representative, as the Board is granting the claim in the decision below, this procedural error is deemed to be non-prejudicial to the Veteran. 38 C.F.R. § 20.903 (2012). 


FINDINGS OF FACT

1.  The competent and probative evidence of record shows that the Veteran's ED is caused by his service-connected CAD and HYT. 

2.  The competent and probative evidence of records does not show that the Veteran's right knee disability had its onset during a period of active military service or within a year of service discharge in 1977 or 1987 or is etiologically related thereto, nor has it been shown to have been caused or aggravated by the service-connected left knee disability.  

3.  In a September 2012 written statement to the Appeals Management Center (AMC), prior to the promulgation of a decision, the Veteran withdrew his appeal pertaining to the claim for service connection for a separated rib cage secondary to treatment for his service-connected CAD. 

4.  For the entire appeal period, the Veteran's incisional hernia has not been productive of weakening of the abdominal wall and indication for a supporting belt.


CONCLUSIONS OF LAW

1.  ED was caused by the Veteran's service-connected CAD AND HYT. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 

2.  A right knee disability was not incurred in service, may not be presumed to have been incurred in service, and is not causally related to or aggravated by the service-connected left knee disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012).

3.  The criteria for withdrawal of a Substantive Appeal regarding the claim for service connection for a separated rib cage, to include as secondary to treatment for the service-connected CAD have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5)  West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 

4.  For the entire appeal period, the Veteran's incisional hernia did not meet the criteria for an initial compensable evaluation. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7339 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Withdrawal of Appeal-Separated Rib Cage

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

In a September 2012 written argument to the AMC, the Veteran withdrew his claim for service connection for a separated rib cage, to include as secondary treatment for his service-connected CAD.  Thus, no allegations of errors of fact or law remain for appellate consideration with respect to this claim.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claim and it is dismissed.




II. Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

As the Board is granting the claim for service connection for ED, to include on a secondary basis, the duty to notify and assist need not be further considered.

Regarding the Veteran's claim for service connection for a right knee disability, to include on a secondary basis, the Veteran was notified via an August 2006 letter of the criteria for establishing service connection on a direct incurrence basis, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  Although the Veteran was not provided notice of the criteria for establishing service connection on a secondary basis until after adjudication of the claim in December 2011 (December 2011 letter from the RO to the Veteran), the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 39 (1993).  The Board notes that following the provision of the required notice, the AMC readjudicated the claim in an August 2012 Supplemental Statement of the Case based upon all evidence of record before the case was returned to the Board.  There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 

This appeal also arises, in part, from disagreement with an initial noncompensable disability ratings following the grant of service connection for an incisional hernia in the appealed January 2007 rating action.  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, 490-91 (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 an initial grant of service connection.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, in view of the foregoing case precedent, the Board finds that no further VCAA notice was required once VA awarded service connection for an incisional hernia. 

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claims of entitlement to service connection for a right knee disability, to include on a secondary basis and entitlement to an initial compensable rating for an incisional hernia, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bernard, supra.  The RO obtained his service treatment and personnel records and VA treatment records and identified private treatment records.  The Veteran's Social Security Administration (SSA) records are also contained in the claims files.  The Board notes that in a September 2012 written argument to VA, the Veteran indicated that he had discussed his hernia with a "Dr. H."  Treatment records, dating from 2006 to 2013, from the above-cited VA facility, to include those of Dr. W. H. are of record and have been associated with the Veteran's physical claims files, as well as having been uploaded to his Virtual VA electronic file.  Thus, in view of the foregoing, the Board finds that no outstanding evidence has been identified that has not otherwise been obtained and associated with the Veteran's physical claims files and electronic Virtual VA file.  

In addition, in response to the Board's December 2011 remand directives, VA examined the Veteran to determine the etiology, in part, of his right knee disability in May 2012.  A copy of the May 2012 VA examination report has been associated with the Veteran's claims files.  The Board finds that the May 2012 VA examination report is more than adequate, it is predicated on a full understanding of the Veteran's medical history, consideration of the Veteran's lay assertions, review of the record, physical examination, and provided a sufficient evidentiary basis for the claim for service connection for a right knee disability, to include on a secondary basis to be adjudicated.  The May 2012 VA examiner has provided answers to the specific medical questions asked by the Board in its December 2011 remand directives, such that the requested development has been completed.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of entitlement to service connection for a right knee disability, to include on a secondary basis has been met.

Regarding the Veteran's incisional hernia, VA examined the Veteran in 2006, 2008 and 2009 to determine its current severity.  Copies of these VA examination reports are contained in the claims files.  Each VA examiner conducted a pertinent physical examination of the Veteran's incisional hernia.  All questions necessary to render the determinations made herein were answered by the above-cited VA examiners.  They accordingly collectively are adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation).  It follows that obtaining a new examination would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); see also Soyini v. Derwinski, 1 Vet. App. 540 (1991). 

In light of the foregoing, the Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the claims for service connection for a right knee disability, to include on a secondary basis and entitlement to an initial compensable rating for an incisional hernia such that no further notice or assistance is required to fulfill VA's duty to assist in the development of these claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001), VA has complied with the duty-to-assist requirements.  38 U.S.C.A. § 5103A.

III. Merits Analysis
A. Service Connection Claims

(i) Laws and Regulations

General criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  That an injury incurred in service alone is not enough.  There must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)), such as arthritis.  A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed.  Id.  In this case, the tenets of 3.303(b) have been invoked with respect to the Veteran's claim for service connection for a right knee disability, to include as secondary to the service-connected left knee disability.

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

Secondary Service Connection Criteria

Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability, not to the natural progress of the nonservice-connected disease or injury.  38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Under the current version of 38 C.F.R. § 3.310, VA will not concede such aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The RO will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (rating schedule) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(a) (2012). 

In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

(ii) Analysis

a. ED claim

The Veteran does not argue that his ED had its onset during a period of military service or that it is etiologically related thereto.  Rather, he contends that he has ED as a result of his service-connected CAD, HYT and hernia.  (See October 2011 written argument, prepared by the Veteran's representative, page (pg.) 3)).  He also maintains that medications prescribed for his service-connected HTN, CAD and psychiatric disorder (dysthymic disorder), to include their cumulative effects, have caused his ED. 

VA opinions, dated in November 2007, March 2008 and May 2012 contained opinions as to the etiological relationship between medications prescribed for the Veteran's service-connected HTN, CAD and depression and his ED.  In April 2013, the Board sought a VHA opinion that addressed whether or not the service-connected HTN, CAD and hernia disabilities in and of themselves, as opposed to medications prescribed therefor, had caused or aggravated his ED.  (See Board's April 2013 VHA request, pg. 2).  The Board also requested that the physician provide an opinion to address the Veteran's contention that his cumulative effects of the medications prescribed for his service-connected HTN, CAD and depression had caused his ED.  Id at pg. 3.  

In May 2012, the Board received the VHA opinion.  After a review of the Veteran's extensive medical history, to specifically include the multitude of medications prescribed to him for his service-connected cardiovascular disabilities (i.e., CAD and HYT) and depression, as well as medical literature, the VA medical expert concluded, in part, that the Veteran's ED had not been necessarily caused by his CAD or HYT.  Rather, he explained that the ED was a sign of his generalized cardiovascular disease.  The VA medical expert indicated that narrowed arteries to the penis had a similar etiology to narrowed arteries elsewhere [in the body].  Thus, the VA medical expert opined that the Veteran's ED would "proceed apace with his generalized cardiovascular disorders."  Overall, the VA medical expert opined that it was more likely than not (greater than 50 percent probability) that the Veteran's ED was caused by the processes that produced his cardiovascular disorders, and by his diabetes mellitus [a disability for which service-connected has not been awarded].  

While the VA medical expert's opinion is not wholly definitive as to the conclusion that the Veteran's ED was solely caused by his service-connected CAD and HYT, the fact remains that there is support for the conclusion that it was proximately caused by the above-cited service-connected cardiovascular disorders.  The VHA examiner essentially determined that the ED, HYT, and CAD all stem from a common cardiovascular process/dysfunction.  Thus, resolving all doubt in his favor, the Board finds that it is as likely as not that the Veteran's ED was caused by his service-connected CAD and HYT.    Service connection for ED as secondary to the service-connected CAD and HYT is warranted.  38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  This portion of the appeal is granted.

b. Right Knee

With respect to the claim for service connection for a right knee disability, the Veteran maintains that it is secondary to stress from his service-connected left knee disability.  (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in July 2006).   

When determining whether service connection is warranted, all theories of entitlement, direct and secondary, must be considered.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). 

The Veteran currently has a right knee disability, namely osteoarthritis (OA) of the right knee.  (See May 2012 VA examination report).  Thus, the crux of the Veteran's claim hinges on whether his currently diagnosed right knee OA has been caused or aggravated by his service-connected left knee disability, as he has alleged, or is otherwise etiologically related to a period of military service.  The Board will discuss the secondary and direct service connection theories separately in the paragraphs below. 

The Veteran primarily contends that his right knee OA is caused by stress caused by his service-connected left knee disability.  In October 2006, a VA examiner opined that it would be mere speculation to state that the Veteran's right knee OA had been caused by his service-connected left knee disability.  (See October 2006 VA examination).  The Board finds this opinion to be of limited probative value as to the etiology of the Veteran's right knee OA because the VA examiner did not provide any reasoning as to why such an opinion would be speculative.  Jones v. Shinseki, 23 Vet. App. 382 (2010) (indicating that the examiner must explain why the requested opinion would be speculative before the Board could rely on such a conclusion.).

A May 2012 VA examiner provided a far more definitive and probative opinion.  Specifically, the VA examiner stated the Veteran's right knee OA was less likely than not caused or related to his left knee OA status-post total knee replacement.  He explained that the Veteran's right knee disorder was the result of aging, body mass index and poor mechanics.  

The May 2012 VA examiner further opined against the possibility that the Veteran's service-connected left knee disability had chronically aggravated the right knee.  The May 2012 VA examiner noted that many persons, such as the Veteran, often claimed that an injury to one leg initiated or aggravated a disabling condition in the normal or previously asymptomatic lower extremity.  The VA examiner indicated that patients usually reasoned that that the injury to one leg had caused them to "'favor'" it and that, in turn, required them to use crutches in or to protect the injured limp.  The VA examiner opined that there was no clear support in medical literature to support the reasoning that an injury to one leg caused a person to "favor" the normal leg by having to bear more weight on it, which, in turn, caused or accelerated [the development of] arthritis in another joint, usually the knee.  The VA examiner maintained that the available evidence indicated that an injury to one extremity rarely caused a major problem in the opposite or uninjured extremity.  The Board accords great probative weight to the VA examiner's opinion since it is based on an accurate factual premise, and offers clear conclusions with supporting data, and a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  This opinion is against the claim and is uncontroverted.

The Veteran is competent, even as a layman, to comment on any symptoms within his five senses, such as having experienced right knee pain.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). 

Regarding the claim for secondary service connection, medical evidence is usually, though not always, required to associate a claimed condition with a service-connected disability.  See Wallin, 11 Vet. App. at 512; Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).  The Board finds medical evidence is needed to establish secondary service connection in the instant case, since the Veteran's right knee OA is not the type of condition that is readily amenable to mere lay probative comment regarding its etiology, given its inherent medical complexity.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377  Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). There is no indication that the Veteran is competent to attribute his right knee symptoms to his service-connected left knee disability, either for the notion that it is causally related to or aggravated by his left knee disability. These are inherently complex medical determinations that require specialized medical expertise.  The Board finds his lay statements regarding secondary service connection for his current right knee disability are not competent.

Since the Board does not find the Veteran's lay statements to be competent to establish the missing elements of his claim, there is no need to next consider the credibility of his lay statements in this regard.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, including during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records, but also indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence).  See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469   (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 

The Board turns to consideration of possible entitlement to service connection for the right knee OA on a direct-incurrence basis, but finds the claim lacking in this respect as well.

There is no objective indication of any chronic right knee disability in service.  A January 1979 physical profile serial report reflects that the Veteran was placed on a temporary limited profile due to pain in the knees and patellar tendonitis (the exact knee was not reported).  However, when examined in May 1981, the Veteran's lower extremities were evaluated as "normal."  Overall, while the Veteran was placed on a temporary profile in January 1979 for bilateral knee pain and patellar tendonitis, this resolved without any further treatment or resulting in any chronic right knee disability.  He does not necessarily argue the contrary. 

The record also fails to show by objective evaluation that he manifested any arthritis of the right knee to a degree of 10 percent by August 1982 or February 1988 (within the first years following his active duty service discharge in August 1981 and February 1987).  The first recorded diagnosis of any right knee disorder is not reported until approximately 2005, approximately 18 years after service discharge in 1987.  (See June 2005 report, prepared by First Med of Dothan, containing an assessment of probable arthritis of the knees).  A November 2005 magnetic imaging scan (MRI) report of the right knee, prepared by W. B., M. D., contained an assessment, in part, of osteoarthritis).  

Since the Veteran has not proffered any lay statements in support of the notion of a theory of direct-service-incurrence (i.e., injury in service or chronic knee dysfunction since service), there is no need for the Board to further consider lay statements in that regard. 

In light of the above discussion, the Board concludes that the preponderance of the evidence is against this claim and there is no doubt to be otherwise resolved.  As such, the claim is denied.

B. Initial Evaluation Claim

General Rating criteria 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  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 (2012). 

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 (2012). 

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, such as in the case of the Veteran's claim for an initial compensable rating for his service-connected incisional hernia.  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). 

Specific rating criteria 

By a January 2007 rating action, the RO, in part, granted service connection for an incisional hernia.  An initial noncompensable evaluation was assigned, effective July 26, 2006.  The RO based their determination on a November 2006 VA treatment report reflecting that the Veteran's incisional hernia was located at the site of his CABG surgery for his service-connected CAD.  (See January 2007 rating action). 

The Veteran's service-connected incisional hernia is currently rated under 38 C.F.R. § Diagnostic Code (DC) 7339.  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, DC 7339. 


Analysis

The Veteran asserts that his service-connected incisional hernia is more severely disabling than is currently represented by the initial noncompensable disability rating assigned.

After a review of the evidence of record, the Board finds that the criteria for an initial compensable evaluation for the service-connected incisional hernia have not been met at any time during the appeal period.  VA examination reports, dated in October 2006 and March 2008, as well as a March 2007 report, prepared by B. M. J., M. D. all show that the Veteran's incisional hernia has been described as small, irremediable, reducible and inoperable.  While the October 2006 VA examiner indicated that there were no residuals as a result of the incisional hernia, the March 2008 examiner noted that the Veteran experienced some mild (italics added for emphasis) tenderness.  Yet, the latter examination report also noted that there was no evidence of any edema, strangling or erythema.  (See October 2006 and March 2008 VA examination reports).  Neither weakening of the Veteran's abdominal wall or any indication for a supporting truss belt were found on any of the above-cited examinations.  (See October 2006 and March 2008 VA examination reports, March 2007 report, prepared by B. M. J., M. D.).  

While a February 2009 VA examination report reflects that the Veteran did not have an incisional hernia upon physical evaluation, an October 2009 VA treatment report reflects that the Veteran had a small hernia that was mildly tender.  Overall, while the evidence shows the presence of a small, reducible, post-operative incisional hernia, there was no indication for a supporting truss or belt, or that is not well-supported by a belt under ordinary conditions, or evidence of a healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt.  The criteria for a higher initial compensable rating under DC 7339 for the service-connected incisional hernia have not been demonstrated. 

Consideration has also been given to whether a 10 percent rating could be assigned for the resulting surgical scar.  In that regard, there is no evidence that the scar is unstable or that the scar has resulted in any limitation of function.  See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7805 (2007).  There is also no consistent evidence of the scar being painful.  Diagnostic Code 7804.   It is true that the October 2006 VA examination and October 2009 VA treatment note described the hernia as being mildly tender.  However, even if this mild tenderness of the hernia were to be likened to that of a painful scar, which the Board is not necessarily willing to accept, these were the only times that pain was noted.  The remaining evidence of record describes the hernia as being essentially asymptomatic.  Such does not support the assignment of a higher rating.

In view of the foregoing, the preponderance of the evidence is against an initial compensable rating for the service-connected incisional hernia, 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.  Fenderson, supra.  The record, however, shows the same level of incisional 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.

The above determination continuing the initial noncompensable disability rating to the service-connected incisional hernia involves application of pertinent provisions of the VA's Schedule for Rating Disabilities, and is made on a schedular basis.  One other avenue exists through which a higher evaluation can be obtained.  Specifically, it is possible to assign an evaluation on an extraschedular basis.  38 C.F.R. § 3.321(b). 

Steps to be taken regarding extraschedular evaluations were set forth in Thun v. Peake, 22 Vet. App. 111 (2008).  A determination of whether the evidence presents such an exceptional disability picture that the available applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board.  If the evaluation criteria are inadequate, the RO or Board must proceed to determine whether the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation.

Neither the Veteran nor his representative has argued for an extraschedular initial evaluation.  There is no indication that his incisional hernia cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above.  The predominant symptoms of the hernia are its size, the need for support from a truss, and weakened abdominal muscles and fascia.  All of these symptoms specifically are accounted for by the schedular evaluation criteria and associated statutes, regulations, and case law.  As explained above, however, the initial noncompensable evaluation accurately describes the severity of the Veteran's incisional hernia because a higher compensable evaluation is not warranted.  In other words, the effect that it has on him is encompassed by the aforementioned evaluation.  This includes his inability to lift heavy items.  (See March 2007 report, prepared by B. M. J., M. D., noting that the Veteran's hernia, in part, prevented him from lifting objects in excess of 30 pounds).   

Given that the applicable schedular evaluation criteria are adequate, the Board finds that the Veteran does not manifest an exceptional incisional hernia disability picture.  Discussion of whether he exhibits related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  Further, referral for consideration of the assignment of an evaluation on an extraschedular basis is not warranted.  See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).

Of final note is that "a request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities ... as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447   (2009); see also Comer v. Peake, 552 F.3d 1662 (Fed. Cir. 2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case, the RO awarded the Veteran entitlement to TDIU, primarily due to his service-connected psychiatric disability, in a September 2008 rating decision.  As such, consideration of a TDIU as a component to this matter is unnecessary.


ORDER

Service connection for ED, secondary to the service-connected CAD and HYT is granted. 

Service connection for a right knee disability, to include as secondary to the service-connected left knee disability is denied. 

Service connection for a separated rib cage, to include as secondary for treatment for the service-connected CAD is dismissed.

An initial compensable disability rating for an incisional hernia is denied. 



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
 


Department of Veterans Affairs