Citation Nr: 1330701 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 04-13 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE What evaluation is warranted for postoperative ventral hernia from May 29, 2002, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at law ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a December 2002 rating decision of the VA Regional Office in Cleveland, Ohio that, inter alia, granted entitlement to service connection for an umbilical hernia, and assigned a zero percent rating effective May 29, 2002. An appeal ensued. The claims file was subsequently transferred to the Columbia, South Carolina VA RO. In September 2006, the Board, in pertinent part, denied entitlement to a higher rating for umbilical hernia. The Veteran appealed to United States Court of Appeals for Veterans Claims (Court). In October 2007, the Court granted a joint motion for remand and vacated the prior decision. In March 2008, the Board remanded the issue. In May 2010, the Board again denied entitlement to a compensable evaluation for an umbilical hernia. The Veteran appealed, and in a November 2011 order the Court granted a joint motion for remand and vacated the prior decision. The issue of what evaluation is warranted for umbilical hernia was remanded for further development in August 2011. FINDING OF FACT Since May 29, 2002, the Veteran's umbilical hernia has not been manifested by a small hernia that is not well supported by a belt under ordinary conditions, or by healed hernia with evidence of post-operative abdominal wall weakening and indication for a supporting belt. CONCLUSION OF LAW The criteria for a compensable evaluation for an umbilical hernia have not been met since May 29, 2002. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.114, Diagnostic Code 7339 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that the symptoms associated with his service-connected umbilical hernia include weakening of the abdominal wall and the necessity for a supporting belt for which a higher rating is warranted. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims. With regard to the notice requirements as service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim and has afforded him VA examinations. The Board finds that the examinations are adequate to render a determination as to this issue on appeal. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. Pertinent Law and Regulations VA granted entitlement to service connection for umbilical hernia by rating decision in December 2002, and assigned a noncompensable evaluation effective May 29, 2002. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2013). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life and is based, as far as practicable, on average impairment of earning capacity in civil occupations. 38 U.S.C.A. §1155; 38 C.F.R. §§4.1, 4.10 (2013). The Veteran's service-connected umbilical hernia is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7339 for ventral hernia. That Diagnostic Code provides for a noncompensable evaluation when postoperative wounds are healed and cause no disability, and a supporting belt is not indicated. A 20 percent evaluation is for application when there is evidence of a small hernia that is not well supported by a belt under ordinary conditions, or when there are healed ventral hernia or post-operative wounds with abdominal wall weakening and an indication for a supporting belt. An umbilical hernia is a hernia in which part of the intestine protrudes through the abdominal wall under the skin at the umbilicus (i.e. the navel or belly button). DORLAND'S MEDICAL DICTIONARY (26th Ed.), 602 (1985). A ventral hernia is a hernia through the abdominal wall. Id. An inguinal hernia is a hernia into the inguinal canal. Id. at 601. The inguinal canal is located below the umbilicus, and near the groin. Id. at 209. The appellant's hernia scar is anatomically located five centimeters inferior to the umbilicus (see August 2009 VA examination report). Pursuant to the October 2007 joint motion, the Board has considered the potential applicability of 38 C.F.R. § 4.114, Diagnostic Code 7338 (2013). As noted above, however, this diagnostic code does not apply in this case because the Veteran has an umbilical (ventral) hernia for which there are specific rating criteria. He does not have an inguinal hernia and this is not at issue. Therefore, the service-connected umbilical hernia is most appropriately rated under 38 C.F.R. § 4.114, Diagnostic Code 7339. See 38 C.F.R. §4.20 (2013). Factual background and legal analysis. VA treatment records dated in September 2001, January 2002, and June 2002 revealed a small, reducible hernia that was tender to deep palpation. It was not indicated on any of those occasions that the use of a supportive belt was necessary. When examined for VA compensation purposes in October 2002, the VA examiner found that the hernia was asymptomatic and was non-tender to palpation. There was no indication that the Veteran used a belt for support. VA treatment records dated in January and February 2009 reflect that the appellant had complaints of pain that precipitated hernia repair in late February 2009. However, these records do not indicate that use of a supporting belt was required to alleviate any symptomatology. Postoperatively, a June 2009 VA treatment record noted that the appellant possibly had neuropathic pain from the hernia repair. This matter was referred to the RO for appropriate consideration and subsequently resulted in the grant of service connection for a hernia scar that is not at issue here. In any event, post-operative treatment records do not reflect a recurrence of hernia or abdominal wall weakening or any indication for a supporting belt. The August 2009 VA examination report reflects that there had been no recurrence of umbilical hernia and that the surgical scar was asymptomatic. The abdomen was normal to inspection and percussion, and did not indicate that there was a need for a supporting belt. Therefore, on review of VA clinical data from 2001 through 2009, the Veteran was shown to have a small reducible hernia that was for the most part asymptomatic until 2009 when he developed painful symptoms and required surgery. There was no showing that umbilical hernia during that time frame was manifested by a small hernia that was not well supported by a belt under ordinary conditions. There was no evidence of post-operative wounds with abdominal wall weakening and no indication for a supporting belt for which a compensable evaluation was warranted. Post surgery, VA outpatient records reflect that an abdominal ultrasound was performed in January 2010. It showed no evidence of abnormal fluid collection or recurrent hernia at the site of the prior herniorrhaphy or umbilicus. The Board notes, however, that in March 2010, his treating VA physician's assistant wrote that a CAT scan in February 2010 showed 'swirling and narrowing of the sigmoid colon...which may be related to postsurgical adhesions and/or internal hernia.' Pursuant to Board remand, the Veteran was most recently afforded a VA hernia examination by a VA physician in June 2012. The examiner indicated that the claims folder was reviewed. A ventral hernia was diagnosed. The examiner stated that the Veteran reported irritation, but no pain at the site of the surgical scar since surgery. It was observed that the surgical site appeared to be well healed without evidence of recurrence of hernia. It was noted that because of the irritation, the appellant had a CAT scan in 2010 that possibly showed adhesions and/or internal hernia. Notably, when CAT scans were repeated in March and July 2011, no such findings were observed. The examiner opined that this suggested that the clinical observations in 2010 were transient bowel contractions and not related to either internal hernia or adhesions, neither of which would have resolved spontaneously. The examiner concluded that a truss would not be helpful in the Veteran's case and that there was no indication for such because there was no evidence of hernia at that time. The examiner stated that umbilical hernia in and of itself would not interfere with gainful employment. In support of the claim, the Veteran's representative has submitted a clinical assessment dated in February 2013 from a VA physician's assistant. The Board observes that findings pertaining to the hernia were copied from the March 2010 report previously cited. On this occasion, the examiner opined that it was as least as likely as not that the Veteran had postoperative changes at the umbilicus site with weakening of the abdominal wall and indication for supportive belt that he wore on a regular basis. It was added that this could be supported by physical examination and the CAT scan findings after his surgery. The evidence reflects, however, that although there was a suspicion of internal hernia or adhesions on a CAT scan performed in 2010, when these diagnostic studies were repeated in March and July 2011, no hernia was confirmed or detected. The VA physician who examined the Veteran in June 2012 stated that adhesions or internal hernia would not have resolved spontaneously and, as such, that neither of these conditions was present in 2010. The assertion by the physician's assistant stating that the Veteran had weakening of the abdominal wall and required a supporting belt but this is not borne out by the record. There is no showing in the voluminous clinical data generated since 2001 that the Veteran has had weakening of the abdominal wall or that he has required the use of or been prescribed a supporting belt for his hernia symptoms. In view of the above, the Board finds that the symptoms associated with the Veteran's umbilical hernia are fully contemplated by the rating schedule under 38 C.F.R. § 4. 4.114, Diagnostic Code 7339 and that a higher rating has not been warranted since May 29, 2002. See Fenderson v. West, 12 Vet.App. at 126; see also Hart v. Mansfield, 21 Vet.App. 505 (2007). As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's umbilical hernia are fully contemplated by the applicable rating criteria, and the Board has considered all pertinent symptoms indicated in lay and medical evidence in assigning the noncompensable rating. Hence, consideration whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Referral for consideration of an extraschedular rating an umbilical hernia is therefore not warranted. 38 C.F.R. § 3.321(b)(1) . Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the appellant's claim and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a compensable evaluation for umbilical hernia since May 29, 2002 is denied. _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs