Citation Nr: 1329934 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 03-28 263 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a ventral hernia, for the period from November 13, 2002 to November 3, 2005, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321. 2. Entitlement to a rating in excess of 40 percent for a ventral hernia, for the period from November 4, 2005, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected ventral hernia, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to March 1985. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2003 rating decision in which the RO granted service connection and assigned an initial 20 percent rating for a ventral hernia, effective November 13, 2002. In April 2003, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. A statement of the case (SOC) was issued in August 2003, and the Veteran filed a substantive appeal in September 2003. In August 2004, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. In March 2005, the Board remanded the claim to the RO (via the Appeals Management Center (AMC), in Washington, D.C.) for further action, to include obtaining all relevant VA treatment records. After accomplishing the requested action, the AMC granted a higher rating of 40 percent, effective November 4, 2005 (as reflected in a December 2005 supplemental SOC (SSOC) and rating decision). In light of the AMC's December 2005 decision, the Board subsequently recharacterized the appeal as encompassing claims for an initial rating in excess of 20 percent for a ventral hernia for the period from November 13, 2002 to November 3, 2005 (excluding the time periods during which a temporary total rating was in effect), and for a rating in excess of 40 percent for a recurrent ventral hernia, for the period from November 4, 2005. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for higher ratings for already service-connected disabilities); and AB v. Brown, 6 Vet. App. 35, 38 (1993) (emphasizing that a Veteran is presumed to seek the maximum available benefit for a disability). In December 2007, the Board denied both claims. The Veteran, in turn, appealed the Board's December 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2008, the Veteran submitted a formal claim for a TDIU. At that time he indicated that he last worked in August 2002. In April 2009, the Court granted a Joint Motion for Remand (Joint Motion) filed by representatives for both parties, vacating the Board's decision , and remanding the claims on appeal to the Board for further proceedings consistent with the Joint Motion. Significantly, the Joint Motion requested that the Board consider the Veteran's allegation of unemployability as a claim for a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2010, the Board remanded the claims on appeal to the RO, via the AMC, for further action, to include arranging for the Veteran to undergo VA examination to obtain a medical opinion addressing the impact of Veteran's ventral hernia on his employability, obtaining any outstanding VA and private treatment records, and initially considering whether the Veteran is entitled to a higher rating on an extra-schedular basis. The Board notes that, at the time of the December 2007 decision, the Veteran was represented by The American Legion. However, in proceedings before the Court, the Veteran was represented by Jeany Mark, a private attorney. Following the Court's remand of this matter to the Board, the Veteran was represented by Ralph Stiehm, another private attorney (apparently associated with Ms. Mark's firm). In April 2010 the Board received another VA Form 21-22, Appointment of Individual as Claimant's Representative, executed by the Veteran in April 2010 that designates Kathy A. Lieberman, another private attorney (also associated with Ms. Mark's and Mr. Stiehm's firm) as his representative. The Board recognizes the change in representation. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated from June 2002 through February 2013 which were considered by the RO in the most recent February 2013 supplemental statement of the case. The remainder of the documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and assistance action needed to fairly adjudicate each claim on appeal has been accomplished. 2. Prior to October 21, 2005, the medical evidence of record shows a small, post-operative ventral hernia with weakening of the abdominal wall and the Veteran's use of an abdominal binder; the medical evidence does not show a large, post-operative ventral hernia not well supported by a belt under ordinary circumstances. 3. Since October 21, 2005, the Veteran's recurrent ventral hernia has been manifested as a 7 centimeter (cm) x 7 cm protuberant ventral hernia (also described simply as "small") in the epigastric area that reduces spontaneously after intra-abdominal pressure is relieved. 4. The Veteran has been granted service connection for ventral hernia (rated as 40 percent disabling), a tender scar associated with ventral hernia (rated as 10 percent disabling), and post-operative residuals of umbilical hernia (rated as 0 percent disabling). The Veteran's combined disability rating is 50 percent. 5. The Veteran has had sporadic employment over the course of the period pertinent to this appeal, beginning in November 2002. The record shows that the Veteran worked as a security guard in 2007 and 2008 and worked as a janitor from December 2008 to June 2012. 6. The combined rating for the Veteran's service-connected disabilities do not meet the minimum percentage requirements for an award of a schedular TDIU, and have not been shown to prevent him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a ventral hernia, for the period prior to October 21, 2005, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.3, 4.7, 4.20, 4.114, Diagnostic Code (DC) 7339 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, a 40 percent, but no higher, rating for ventral hernia, for the period beginning October 21, 2005, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.20, 4.114, Diagnostic Code (DC) 7339 (2012). 3. The criteria for a rating in excess of 40 percent for a recurrent ventral hernia are not met at any point pertinent to this appeal. 38 U.S.C.A. §§ 1155 , 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.3, 4.7, 4.20, 4.114, DC 7339 (2012). 4. The criteria for a TDIU, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, which includes claims for a TDIU, a claimant must be provided with information pertaining to assignment of disability ratings, as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in April 2005 and March 2010 post-rating letters, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claim for an initial higher rating for a ventral hernia, as well as what information and evidence must be submitted by the appellant, what information and evidence would be obtained by VA, and the need for the appellant to advise VA of and to submit any further evidence that is relevant to the claim. The August 2003 SOC, December 2005 SSOC, January 2012 SSOC, and February 2013 set forth the criteria for higher ratings for the disability (the timing and form of which suffice, in part, for Dingess/Hartman). After issuance of each notice described above, and opportunity for the appellant to respond, the February 2013 SSOC reflects readjudication of the claims. Hence, the appellant is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, outpatient treatment records from the Jesse Brown VA Medical Center (VAMC) and from the VA Lakeside Clinic in Chicago, Illinois, reports of VA examination, as well as a January 2013 determination by the Director of VA's Compensation and Pension Service. Also of record and considered in connection with these claims is the transcript of the Veteran's August 2004 Board hearing, as well as various written statements provided by the Veteran (to include one written with the assistance of a Veteran's advocate), and by his representative and attorneys, on his behalf. The Board finds that no further RO action, prior to appellate consideration, ia With respect to the August 2004 Board hearing, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge at the RO. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the individual (interpreted to refer to an RO Decision Review Officer or Veterans Law Judge) who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the Board hearing, the undersigned clearly identified the only issue then on appeal-a rating in excess of 20 percent for ventral hernia. Also, information was solicited regarding the Veteran's symptoms, treatment and employment history. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. Id. at 497. Although the submission of specific evidence was not suggested, any omission in this regard was current this was cured by the evidence obtained on subsequent remands. As such, the Board hearing was legally sufficient. In sum, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the claim on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Ratings for Ventral Hernia Disability evaluations are determined by application of criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has 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). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. Historically, by rating action of March 2003, the RO granted service connection and assigned a 20 percent initial rating for a ventral hernia, effective November 13, 2002. The initial rating was assigned under the provisions of 38 C.F.R. § 4.114, DC 7339, which is for rating a post-operative ventral hernia. By rating action of December 2005, the RO increased the rating for a recurrent ventral hernia to 40 percent, effective November 4, 2005. In this case, as the RO has already assigned staged ratings for the Veteran's ventral hernia, the Board must consider the propriety of the rating at each stage, as well as whether any further staged rating is warranted. Under Diagnostic Code 7339, a 20 percent rating is warranted for a small, post-operative ventral hernia that is not well supported by a belt under ordinary conditions, or a healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for a large, post-operative ventral hernia that is not well supported by a belt under ordinary circumstances. A 100 percent rating is assigned for a massive, post-operative ventral hernia that is persistent, 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. Considering the pertinent evidence in light of the above-noted criteria, the Board finds that a rating in excess of 20 percent for the Veteran's ventral hernia, for the period from November 13, 2002 to October 20, 2005, is not warranted. Applying the demonstrated symptoms of the Veteran's ventral hernia to the rating criteria, the Board notes that a rating in excess of 20 percent would require a showing of a large, post-operative ventral hernia that is not well supported by a belt under ordinary circumstances. See 38 C.F.R. § 4.114, DC 7339 (2012). The medical evidence of record for this time period does not demonstrate that the criteria for this higher rating are met. VA outpatient treatment records show that, in November 2002, the Veteran complained of a bulge in his mid-abdomen, especially when he tried to lift objects, and of discomfort, when the bulge appeared. He complained of pain with each occurrence of his belly pouching out in midline over the umbilicus. He was given an abdominal binder to wear, and scheduled for surgery the following month to repair a ventral hernia. December 2002 VA treatment records reflect the Veteran's complaints of increased abdominal pain, nausea and vomiting, and hematemesis. It was noted that the Veteran had sharp epigastric abdominal pain since the previous year with nausea and vomiting. The Veteran denied radiation of pain and fever and chills. Bowel movements had been normal. During pre-op, it was noted that the Veteran could walk up three to four flights of stairs. Surgical repair was with mesh onlay patch due to the small size of the hernia. During his post-operative recovery period in January 2003, the Veteran was instructed to avoid heavy lifting for six weeks. The report of a February 2003 VA examination reflects that the Veteran was then taking Tylenol for pain. He complained of continued abdominal pain over the peri incisional area and there was a diffuse soreness in the area on essentially a constant basis. The Veteran said that it was worse with heavy lifting or trying to bend over, when he tensed his abdominal muscles. It was noted that the Veteran was wearing an abdominal binder and had not been doing any heavy lifting. On examination, the examiner noted that there were no peritoneal signs, rebound or guarding, or Murphy's signs. The Veteran had no palpable liver or spleen tip. The examining physician diagnosed a ventral hernia post-surgery for a congenital umbilical hernia. The examiner commented that, in repairing the Veteran's umbilical hernia in-service, an incision had been made through the Veteran's peritoneum as well as rectus tissue that may have provided an area of weakening within his abdominal musculature and rectus muscles that was predisposed to a ventral hernia. June 2003 VA treatment records reflect that the Veteran was seen for pain and bulging at the hernia site upon prolonged standing or lying down. He noted moderate relief with the abdominal binder. He was encouraged to wear the abdominal binder and refrain from heavy lifting. In his September 2003 substantive appeal, the Veteran stated that, despite surgery in December 2002, he was still enduring bulging and discomfort and that VA wanted to schedule him for further surgery. During the August 2004 Board hearing, the Veteran testified that the ventral hernia was located just above his belly button, that the muscle was weakened and very tender, and that the hernia normally bulged (Transcript at p. 3). He complained of persistent pain, especially when he was standing (Transcript at p. 4). He stated that his hernia was not small and was, instead, a "good size," going from the center part of his stomach to the chest cavity. (Transcript at p. 4). He also said that he wore a support belt, but that it did not work and that he often tightened his belt (Transcript at p. 5). The Veteran also testified that a second surgery was contemplated (Transcript at p. 5). A May 2005 VA medical record reflects that the ventral hernia repaired in 2002 had reoccurred. It was noted that the Veteran probably could not lift heavy objects more than 50 pounds or stand for a long period of time, not longer than two to four hours. June 2005 VA medical records reflect that the Veteran's complaints of abdominal pain had grown worse over the previous two to three months; the abdomen was noted as soft and the area of the ventral hernia as well as immediately lateral to the hernia also were noted as tender. The Board finds that, for the period in question, the medical evidence does not show a large, post-operative ventral hernia that is not well supported by a belt under ordinary circumstances. Rather, the evidence shows a small, post-operative ventral hernia surgically repaired with indications of a weakened abdominal muscle and the Veteran's use of an abdominal binder. Therefore, the criteria for rating in excess of 20 percent, under Diagnostic Code 7339, for this period, are not met. Moreover, during the period in question, there is no other potentially applicable diagnostic code pursuant to which any higher rating for the Veteran's service-connected ventral hernia might be assigned. Diagnostic Code 5319, for evaluation of injuries to Muscle Group XIX (the muscles of the abdominal wall) provides for assignment of ratings of 30 and 50 percent for injuries that are moderately severe and severe, respectively. 38 C.F.R. § 4.73, Diagnostic Code 5319. As the medical evidence shows no more than a slight injury to any abdominal muscle, DC 5319 is not applicable. Under DC 7338, a 30 percent rating is assignable for a small post-operative and recurrent, or unoperated and irremediable, inguinal hernia that is not well supported by truss or not readily reducible. In this case, as the Veteran has relayed that further surgery has been suggested by medical professionals, the hernia is not considered unoperable. Moreover, the Veteran has worn an abdominal binder, and the evidence supports a finding that the binder was helpful. Thus, the Board finds no basis for a assignment of a higher rating by analogy to an inguinal hernia under DC 7338. Under DC 7346, a 30 percent rating is available for a persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. As the evidence does not show any sign of substernal or arm or shoulder pain, the Board finds that DC 7346 provides no basis for assignment of a higher rating by analogy to a hiatal hernia. However, considering the evidence since October 21, 2005, in light of the above-noted criteria, the Board finds that the 40 percent rating for the Veteran's recurrent ventral hernia is warranted from that date. Significantly, an October 21, 2005 VA treatment record shows the recurrence of hernia measuring 7 cm x 5 cm. Significantly, the November 2005 VA hernia examination noted the presence of a 7 cm x 7 cm protuberant ventral hernia. However, the November 2005 VA examiner stated that the recurrence of the hernia was found on examination on October 21, 2005. This evidence shows a large, post-operative ventral hernia that is not well supported by a belt under ordinary circumstances as early as October 21, 2005. As such, a 40 percent rating for ventral hernia is warranted beginning October 21, 2005. However, no higher rating is assignable at any time since October 21, 2005. Applying the demonstrated symptoms of the Veteran's ventral hernia to the rating criteria, the Board notes that a rating in excess of 40 percent would require a massive, post-operative ventral hernia that is persistent, with severe disastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. See 38 C.F.R. § 4.114 , DC 7339 (2012). Such is not shown here. The report of a November 2005 VA examination reflects that the Veteran reported the recurrence of the protuberant ventral hernia two months before the examination. An October 2005 medical note cited by the examiner indicates the recurrence of a hernia measured as 7 cm x 5 cm in the epigastric area. The Veteran was quoted as doubting a progressive enlargement of the hernia. The examiner stated that the Veteran wore an abdominal elastic support and avoided heavy lifting. It also was noted that the Veteran was scheduled for a surgical evaluation for possible repeat surgery. Examination of the abdomen did not reveal the hernia when lying quietly supine. Intra-abdominal pressure revealed the presence of a protuberant ventral hernia that measured approximately 7 cm x 7 cm in the epigastric area. The examiner noted it reduced spontaneously after the stressor was relieved. The examiner's diagnosis was recurrent ventral hernia. An October 2006 VA treatment report shows findings of a computed tomography (CT) scan which shows a small hiatal hernia. Subsequently, in August 2007 the Veteran was found to have focal point tenderness and a very small hernia defect. He underwent surgery for his ventral hernia a second time in August 2007. An August 2010 VA treatment record shows complaints of post-surgical pain related to prior epigastric and umbilical hernia repairs. The Veteran complained of intermittent abdominal pain inferior to epigastric hernia repair. CT scan showed intact hernia repair with no evidence of recurrence. No focal abnormalities on CT noted at area of tenderness. The physician discussed the possible options for treatment of this pain with the Veteran. Significantly, the physician explained that while local exploration of the prior hernia repairs was an option, without a clear source for his pain it is likely that surgery would be unsuccessful. Additionally, that would expose him to the risks of a surgical procedure and possible mesh infection. The physician felt the risks of surgery far outweighed the theoretical benefits and that ultimately the patient would be better served by pursuing non-operative management. The examiner referred the Veteran to the anesthesia pain service for possible local anesthetic injection and the Veteran was amenable to this. It was noted that the Veteran was to follow up with General Surgery as needed or if the symptoms became unmanageable. A March 2012 VA treatment record shows that the Veteran was admitted to the emergency room due to abdominal pain. The Veteran stated that at his baseline he had a dull epigastric abdominal pain that had persisted for the past several years. Presently, he complained of intermittent pinching abdominal pain overlying where his ventral hernia repair scar was located. His pain was most noticeable when he bent forward and was relieved with he sat back. The pain was non-radiating and varied in intensity. The impression was suspect dyspepsia/ GERD (gastroesophageal reflux disease) underlying symptoms, resolved with stomatitis cocktail. The report of a November 2012 VA abdominal examination reflects that the Veteran underwent ventral hernia repaired in 2007. The examiner noted recurrent hernia following surgical repair and indicated that the recurrent hernia appeared operable and remediable. On physical examination the examiner noted a small ventral hernia. There was an indication of a supporting belt and the examiner noted that the hernia could be supported by the truss or belt. The examiner noted that the Veteran had a scar related to his ventral hernia which was not painful or unstable and was not greater than 39 square cm. The examiner further wrote that the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to his ventral hernia. The examiner wrote that no significant diagnostic testing was conducted. The examiner wrote that the Veteran's ventral hernia did impact his ability to work, specifically because of mild pain when lifting or bending, but the examiner also wrote that the Veteran's current diastasis recti (ventral hernia) did not render him unable to obtain and maintain gainful employment appropriate to work considering his educational background. The Board finds that the medical evidence since October 21, 2005 does not show a massive, post-operative ventral hernia that is persistent, with severe disastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. The protuberant 7 cm x 7 cm hernia in the epigastric area reduces spontaneously after intra-abdominal pressure is relieved. Further, there is no medical evidence in the record suggesting that the Veteran's ventral hernia is inoperable. While the August 2010 VA physician wrote that the risks of surgery far outweighed the theoretical benefits and that ultimately the patient would be better served by pursuing non-operative management, she did not indicate that the Veteran's ventral hernia was inoperable. Furthermore, the November 2012 VA abdominal examiner wrote that the Veteran's ventral hernia appeared operable and remediable. As above, a 100 percent rating under DC 7339 requires massive, post-operative ventral hernia that is persistent, 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. In this case, the pertinent evidence more nearly reflects a large, post-operative ventral hernia that is not well supported by a belt under ordinary circumstances, which is consistent with the 40 percent rating assigned. Because, for the period since October 21, 2005, the Veteran's disability picture has more nearly approximated that required for the current rating, a higher rating, under DC 7339, is not warranted. Moreover, during the period in question, there is no other potentially applicable diagnostic code pursuant to which any higher rating for the Veteran's recurrent ventral hernia might be assigned. There is no evidence of a measurable injury to any weakened muscle in Muscle Group XIX, pursuant to DC 5319. Under DC 7338, a 60 percent rating for a large, post-operative, recurrent inguinal hernia that is not well supported under ordinary conditions and not readily reducible, when considered inoperable. 38 C.F.R. § 4.114, DC 7338. However, there is no evidence that the Veteran's ventral hernia is considered inoperable. Therefore, the Board finds no basis for assignment of a higher rating by analogy to an inguinal hernia under DC 7338. Under DC 7346 for rating a hiatal hernia, a 60 percent rating is available for a hiatal hernia 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, the record contains no medical evidence in this time period that suggests the Veteran is facing a severe impairment of health from his ventral hernia. Therefore, the Board likewise finds no basis for assignment of a higher rating by analogy to a hiatal hernia under DC 7346. The above-noted determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds at no point since the effective date of the award of service connection for the Veteran's ventral hernia has the disability been shown to be so exception or unusual to render the schedular criteria for evaluating the disability inadequate, and to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited and discussed in the March 2003 rating decision, August 2003 SOC, as well as the January 2012 and February 2013 SSOCs). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant'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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. Here, the Board finds that the applicable schedular criteria are adequate to rate the Veteran's ventral hernia under consideration at all pertinent points. The criteria applicable to the ventral hernia contemplates the described symptomatology, and provide for ratings higher than that assigned based on more significant functional impairment. Significantly, there has been no assertion by the Veteran or his representative that the schedular criteria for evaluating the disability are inadequate. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board concludes that, although a 40 percent rating for the Veteran's ventral hernia ia warranted from October 21, 2005, an initial rating in excess of 20 percent for a ventral hernia for the period from November 13, 2002 to October 21, 2005, and for a rating in excess of 40 percent for that disability, for the period from October 21, 2005, must be denied. In reaching these conclusions, the Board has favorably applied the benefit-of-the-doubt doctrine in determining that a 40 percent rating is warranted from October 21, 2005, the preponderance of the evidence is against assignment of any higher rating at any pertinent point. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As a final matter, the Board points out, as indicated above, that the Veteran underwent surgery for his ventral hernia on two occasions during the course of this appeal, first in December 2002 and again in August 2007. It appears that the Veteran was granted a temporary total rating under the provisions of 38 C.F.R. § 4.30 from December 27, 2002 through February 28, 2003. Immediately following the August 2007 surgery, the Veteran submitted a claim for a temporary total rating under the provisions of 38 C.F.R. § 4.30 due to his August 2007 surgery. By rating decision dated in May 2008 the RO denied a temporary total rating pursuant to 38 C.F.R. § 4.30. The Veteran has not perfected an appeal with regard to that decision. As such, the Board will not consider whether a claim for a temporary total rating under the provisions of 38 C.F.R. § 4.30 is warranted following the Veteran's August 2007 surgery. Also, in February 2012, the Veteran's representative wrote that the Veteran had a tender umbilical scar as a result of his hernia repair and argued that the Veteran should be rated separately for the tender scar. While it is unclear when the RO took action on this claim, the most recent October 2012 rating decision shows that the Veteran is now service connected for a tender scar associated with ventral hernia, rated as 10 percent disabling effective December 27, 2002 (which appears to be the date of the Veteran's 2002 ventral hernia surgical repair). Furthermore, in the April 2009 Joint Motion, it was noted that the Veteran had raised the issue of entitlement to service connection for depression as secondary to the Veteran's service-connected ventral hernia. Significantly, the RO had previously denied service connection for dysthymia by rating decision dated in February 2005. Thereafter, in January 2010, the Board referred the psychiatric issue to the RO pursuant to the April 2009 Joint Motion. Subsequently, by rating decision dated in October 2012 the RO found that the Veteran had failed to submit new and material evidence to reopen his previously denied claim for service connection for a psychiatric disorder. As such, the Board finds that the issues of entitlement to a compensable disability rating for a tender scar secondary to ventral hernia as well as entitlement to service connection for depression secondary to ventral hernia are no longer at issue. III. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). In this case, service connection is in effect for ventral hernia (rated as 40 percent disabling), tender scar associated with ventral hernia (rated as 10 percent disabling), and post-operative residuals of umbilical hernia (rated as 0 percent disabling). The Veteran's combined disability rating is 50 percent. Thus, he does not meet the minimum TDIU percentage requirements because his service-connected disabilities constitute a total disability of less than 70 percent. 38 C.F.R. § 4.16(a). However, entitlement to a total rating, on an extra-schedular basis, may nonetheless be established, in exceptional cases-and pursuant to specifically prescribed procedures-when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). The central inquiry is whether the Veteran's service connected disabilities, alone, are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his age or to the impairment resulting from nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. In this case, the record shows that the Veteran has had sporadic employment over the course of the appeal period beginning November 2002. The record shows that the Veteran worked as a security guard in 2007 and 2008, and worked as a janitor from December 2008 to June 2012. In November 2012, the Veteran underwent a VA general examination to obtain an assessment of the impact of his service-connected disabilities upon his employability. During this examination the Veteran reported that he had limitations in standing (he could only stand for 15 minutes due to low back pain and "restasis") and had limitations in lifting (no more than 70 pounds). He reported that he was independent in his activities of daily living. The examiner noted that the Veteran had worked as a custodial worker and, reportedly, had one year of college per a VA Form 21-2507. However, according to the November 2012 VA general examiner, the Veteran had four years of college with a bachelor's degree in political science. The Veteran also reported that he was currently attending school to become a pharmacy technician. Based on a review of the claims file the examiner opined that it was less likely than not that the Veteran's ventral hernia with scar and post-operative residuals of umbilical hernia precluded his securing or maintaining substantially gainful employment. The examiner wrote that the Veteran was not limited by his umbilical hernia. His ventral hernia with scar and post operative residuals of umbilical hernia did not disable the Veteran to the point of unemployability. The examiner noted that the Veteran's intellectual and physical abilities would allow for employment within fields that require mild amounts of physical exercise and an average level of intelligence. In a January 2013 response to the RO's November 2012 request for an extra-schedular determination, the Director of VA's Compensation and Pension Service, found that the Veteran's service-connected ventral hernia was manifested by symptomatology that did not warrant schedular or extra-schedular ratings in excess of those assigned (20 percent from prior to November 4, 2005 and 40 percent from November 4, 2005). The Director also found that the evidence did not establish entitlement to a TDIU on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b). The Board agrees. The Board acknowledges that the evidence supports a finding that, due to the combined effects of his disabilities, the Veteran cannot perform work that requires significant amounts of physical exercise. However, the inability to perform highly physical employment, alone, is not dispositive of the unemployability question. The central inquiry here is whether the Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment. In this case, there is no evidence that the Veteran's service-connected disabilities render him unable to obtain or retain substantially gainful employment. A November 2012 VA general examiner opined that it was less likely than not that the Veteran's ventral hernia with scar and post-operative residuals of umbilical hernia precluded his securing or maintaining substantially gainful employment. Significantly, the examiner noted that the Veteran's intellectual and physical abilities would allow for employment within fields that require mild amounts of physical exercise and an average level of intelligence. This is significant because it shows that the Veteran is physically capable of working in the fields that he has worked over the course of the appeal period (i.e., a security guard and a janitor). Also, as above, the record shows that the Veteran worked as a security guard in 2007 and 2008, and worked as a janitor from December 2008 to June 2012. This shows that the Veteran can and has worked even when he has claimed difficulty doing so. The Board also finds that the Veteran's own assertions provide no basis for allowance of the claim. During his August 2004 Board hearing the Veteran testified that his ventral hernia disorder rendered him unemployable. Specifically, the Veteran indicated that he was working in the security industry which, at times, required standing for long periods of time and carrying anywhere between 25 and 70 pounds. This, according to the Veteran, caused his ventral hernia great discomfort. The Veteran indicated that he had a high school diploma and some college credits from 1991 in the computer industry but that he would have difficulty working in this field now due to the lapse of time in his training. While the Board has considered the Veteran's assertions, they do not constitute persuasive evidence in support of the claim. As a layperson, the Veteran simply is not shown to possess expertise in medical or vocational matters. See Bostain v. West , 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, his lay assertions are not considered more probative than the objective and medical opinions rendered by individuals with appropriate training experts on this matter. For all the forgoing reasons, the Board finds that claim for a TDIU, to include on an extra-schedular basis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER An initial rating in excess of 20 percent for a ventral hernia, for the period from November 13, 2002 to October 20, 2005, is denied. A rating of 40 percent, and no greater, for the period beginning October 21, 2005 is granted, subject to the legal authority governing the payment of VA compensation. A rating in excess of 40 percent for recurrent ventral hernia is denied. A TDIU due to service-connected ventral hernia, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs