Citation Nr: 1323969	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  06-35 106	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1.  Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for additional disability resulting from VA surgery to repair umbilical hernias.

2.  Entitlement to an increased rating for umbilical hernia residuals, currently assigned a 20 percent evaluation.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from January 1973 to January 1990.

These matters came to the Board of Veterans' Appeals (Board) from a February 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to an increased rating for umbilical hernia residuals, and an October 2006 decision in which he was informed that the RO would not consider his 38 U.S.C.A. § 1151 claim.  

In November 2009 and March 2013, the Veteran testified at hearings before the undersigned Veterans Law Judge; the transcripts are of record.  

The issue of entitlement to an increased rating for umbilical hernia residuals is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if any further action is required on his part.


FINDINGS OF FACT

1.  Service connection is in effect for status post umbilical hernia times two, and entitlement to an increased rating for umbilical hernia residuals is currently in appellate status.

2.  Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability resulting from VA surgery to repair umbilical hernias is deemed moot.


CONCLUSION OF LAW

Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for additional disability resulting from VA surgery to repair umbilical hernias is dismissed.  38 U.S.C.A. § 7104 (West 2002).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In cases such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantive the claim, VA's duties to notify and to assist are not applicable.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Manning v Principi, 16 Vet. App. 534 (2002).

During the course of this appeal, the Veteran's contentions have been largely concerned with his belief that he has additional disability due to VA treatment, which should be compensated under 38 U.S.C.A. § 1151, and that the RO failed to follow the directives set forth in the May 2005 Board decision, which referred the apparent 38 U.S.C.A. § 1151 claim to the RO for "appropriate action." 

Compensation pursuant to § 1151 shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service-connected.  38 U.S.C.A. § 1151.

The disability (umbilical hernia) for which the VA surgery was performed, however, is a service-connected disability, and, thus, service connection is in effect, or may be granted, for residuals of that surgery, as secondary to, or part of, the service-connected disability.  Moreover, service connection does not require a showing of VA fault or negligence as does a claim based on 38 U.S.C.A. § 1151, and, thus, it is easier to establish entitlement.  In this regard, the Veteran's administrative Tort Claim was denied by the VA Regional Counsel in February 2006. 

The RO did take action on this claim, informing the Veteran, in July 2005 correspondence and in an October 2006 statement of the case (on the increased rating issue), that a separate 38 U.S.C.A. § 1151 claim would not be considered because entitlement under that statute applies to claims where service connection has not already been established.  He was informed that because he was already service-connected for the disability being claimed, there was no provision for a claim under 38 U.S.C.A. § 1151.

The Veteran perfected an appeal with the RO's deemed denial.  See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (If the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.).  The Board agrees, however, that a separate § 1151 claim is not for consideration for additional disability resulting from VA surgery to repair umbilical hernias, as any additional disability resulting from VA surgeries is contemplated in the increased rating claim for umbilical hernia residuals.  

A disability rating in excess of 20 percent for umbilical hernia was denied in an unappealed May 2005 Board decision.  38 U.S.C.A. § 7104.  In August 2005, the Veteran filed an increased rating claim and such claim is the subject of the current appeal, and the issue of entitlement to an increased rating for umbilical hernia residuals is addressed in the Remand below.  The Board also notes that service connection has been established for scar, umbilical hernia repair associated with status post umbilical hernia repair times two, rated 10 percent disabling, and residuals of nerve entrapment associated with status post umbilical hernia repair times two, rated 10 percent disabling.  

The Board finds that a separate claim pursuant to 38 U.S.C.A. § 1151 for umbilical hernia residuals is not for consideration as service connection is already in effect for umbilical hernia residuals.  38 U.S.C.A. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for additional disability resulting from VA surgery to repair umbilical hernias is dismissed.  


REMAND

The Veteran's status post umbilical hernia repair times two is currently rated 20 percent disabling per 38 C.F.R. § 4.114, Diagnostic Code 7339.  

Service connection is also in effect for scar, umbilical hernia repair associated with status post umbilical hernia repair times two, rated 10 percent disabling; residuals of nerve entrapment associated with status post umbilical hernia repair times two, rated 10 percent disabling; chronic pain disorder associated with both psychological factors and general medical condition, rated 50 percent disabling; residuals status post left thoracotomy with bronchiogenic cyst with chronic denervation changes and scar, rated 30 percent disabling; status post amputation, distal interphalangeal joint, left thumb, rated 20 percent disabling; hyperpigmentation of the face, rated 10 percent disabling; and, hemorrhoids, rated noncompensably disabling.  These ratings are not currently in appellate status.

In November 2012, the Veteran underwent a VA examination to assess the severity of his status post umbilical hernia repair.  On physical examination, no hernia was detected and it was noted that he had healed postoperative ventral hernia repair, healed postoperative wounds with weakening of abdominal wall, and moderate diastasis recti.  

In March 2013 correspondence from Brenton D. Wynn, M.D., it was indicated that the Veteran continues to suffer from constant, around the clock neuropathic abdominal pain.  It was noted that a major contributing factor to his sciatica is the weakness of the abdominal muscle secondary to the diastais of the rectus abdominus muscle tissue.  This condition has caused poor lumbar muscle control and pelvic instability leading to biomechanical dysfunction and loss of lumbar protective mechanisms that would protect against sciatica.  

In light of the opinion of Dr. Wynn, the Veteran should be afforded another VA examination to assess whether he has any additional disabilities and/or residuals stemming from his umbilical hernia condition and subsequent surgeries, which are not already contemplated by the service-connected conditions.  

The Board also notes that while Dr. Wynn has indicated treating the Veteran since October 18, 2010, there do not appear to be treatment records from Dr. Wynn, only correspondence dated in May 2012 and March 2013.  Upon obtaining an appropriate release from the Veteran, records from Dr. Wynn should be requested.  38 C.F.R. § 3.159(c)(1).  

Accordingly, the case is REMANDED for the following actions:

1.  After obtaining an appropriate release from the Veteran, request the Veteran's treatment records from Dr. Wynn.

If such efforts prove unsuccessful, the Veteran should be notified and documentation to that effect should be added to the claims folder.

2.  Thereafter, schedule the Veteran for a VA examination to assess the nature and severity of umbilical hernia and any residuals.  The claims folders and a copy of this Remand should be made available to the examiner to review in conjunction with the examination.  

All symptoms and residuals associated with the umbilical hernia, to include hernia surgeries, should be described in detail.

The examiner should give consideration to the March 2013 correspondence from Dr. Wynn, and indicate whether the Veteran has a disability manifested by abdominal symptoms or a neurological disability (not contemplated by his service-connected scar, umbilical hernia repair associated with status post umbilical hernia repair times two; residuals of nerve entrapment associated with status post umbilical hernia repair times two; chronic pain disorder associated with both psychological factors and general medical condition; residuals status post left thoracotomy with bronchiogenic cyst with chronic denervation changes and scar; and, hemorrhoids) due to his umbilical hernia or any umbilical hernia surgeries.  

3.  After completion of the above and any additional development deemed necessary, readjudicate the issue of entitlement to an increased rating for umbilical hernia residuals.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case, and afforded an opportunity to respond before the case is returned to the Board.

The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs