Citation Nr: 1339627 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-26 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, claimed as residuals of hernia surgery, to include as secondary to service-connected herniorrhaphy scar. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected herniorrhaphy scar. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had a period of active duty for training from August 17, 1975, to August 18, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating of the Department of Veterans Affairs (VA), Regional Office (RO), in Indianapolis, Indiana, that granted service connection for a herniorrhaphy scar, and assigned an initial 10 percent disability rating therein. This matter also arises from an August 2010 rating decision that denied service connection for a gastrointestinal disorder, claimed as residuals of hernia surgery, to include as secondary to the service-connected herniorrhaphy scar. The issue of service connection for a gastrointestinal 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. FINDING OF FACT The residual scar status post hernia surgery was noted on the May 2010 VA examination to be three inches long and one half inch wide, located about four inches above the umbilicus, with mild tenderness on deep palpation, and superficial and stable with no evidence of recurrence of hernia, nor of incisional hernia. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for service-connected herniorrhaphy scar have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7802-7805 (in effect from August 30, 2002, to Sept. 23, 2008), Diagnostic Codes 7802-7805 (2013), 4.114, Diagnostic Code Diagnostic Code 7339 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's claim arises from her disagreement with the initial disability rating following the grant of service connection. Courts have held that, once service connection is granted, the claim is substantiated and additional notice is not required. Thus, any defect in the notice provided to the Veteran is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment records, VA treatment records, Social Security Administration records, private treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Disability Rating for Herniorrhaphy Scar Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran alleges her scar resulting from hernia surgery is more disabling than currently evaluated. By way of history, she is shown to have sustained an epigastric hernia while helping move boxes during active duty for training on August 17, 1975. She alleged in a statement in support of her claim in November 2007 that she underwent surgery shortly after being diagnosed with this hernia, and described issues with blisters on the surgical incision after stitches were removed and it was taped. Service connection was granted for the surgical scars as residuals from this surgery with an initial 10 percent disability rating granted effective from the November 2007 date of the initial claim. Private treatment records obtained from the Social Security Administration mostly deal with other medical issues unrelated to the surgical scar resulting from the herniorrhaphy. They do reflect that the Veteran was treated in November 1997, December 1997, and January 1998 for gastroesophageal reflux disease and esophageal diverticulitis with findings of tenderness in the epigastric region. The Veteran is shown to have undergone extensive workup for gastrointestinal complaints in August 2006 and September 2006 for complaints of abdominal pain, reflux symptoms, and bowel habit changes, with no specific findings regarding any residual scar from her hernia surgery. A VA examination report dated in January 2008 shows that in assessing residuals of the hernia surgery, the Veteran reported tenderness on deep palpation of the lateral right side of the incision. She described abdominal incisional pain which was moderately severe and precipitated by lifting anything over 30 pounds. This was said to produce abdominal muscle spasm. The physical examination itself elicited complaints of tenderness intermittently on deep palpation along the abdominal incision. No further findings or complaints relative to the scar were reported. In March 2008, the Veteran underwent a laparoscopic cholecystectomy surgery for chronic cholecystitis. Following surgery in the same month, she reported tenderness from incisional scars with examination revealing the abdomen wounds healing well and the scars looking very good at the time, without erythema or discharge. Tenderness was noted over the scar and the abdominal pain in the right upper quadrant appeared primarily to be due to scar tenderness. In May 2008, she was seen for multiple complaints including an active sore in the inguinal area, surrounded by multiple bumps. Physical examination revealed the abdomen to be soft and non tender with a rash in the lower skin fold of the abdomen consistent with dermatophyte infection. The diagnosis was dermatophytosis of the body. A VA scars examination report dated in August 2008 shows that the Veteran reported tenderness along her incision line from the hernia surgery. She also described intermittent spasm which would pull the incision occurring about once a week, and lasting until she was able to massage the incision. On physical examination the scar was three inches long and one half inch wide, located about four inches above the umbilicus. There was mild tenderness on deep palpation of the superior incision. The texture of the scar was slightly rougher than surrounding skin without irregularity. The scar was superficial and was not unstable, was neither elevated nor depressed and was not deep. There was no evidence of inflammation, edema or keloid formation. It was slightly browner than surrounding skin. There was no area of induration or inflexibility of skin in the area of the scar. There was no limitation of motion. Color photographs were taken and submitted for this examination. The diagnosis was superficial abdominal scar. Review of the photographs from August 2008 revealed a slightly darker area of skin in a narrow vertical line on the abdomen several inches above the naval. VA records from 2009 primarily address other medical problems but do include repeated findings that the abdomen was nontender (with no separate finding for the scar itself), in July 2009, September 2009 and October 2009. During the October 2009 hearing, the Veteran described that while working at her job at a license bureau following the hernia surgery, her post-surgery scar, which she described as still not completely closed, was taped up, and pulled every time she turned to get license plates. She described getting blisters on each side from the tape pulling. She testified that she had gone to the emergency room for treatment and told to leave the tape off. She went on to testify that she believed other stomach troubles such as acid reflux were caused by the scar. She reported the scar as causing trouble sleeping at times. She confirmed that the scar was located on her abdomen above her belly button. The rest of the testimony centered around gastrointestinal symptoms she believed were from the scar, as she believed the scar extended deep into the abdomen beyond the muscle. Private treatment records from late 2009 and 2010 addressed abdominal complaints including abdominal pain that particularly affected the upper abdomen as reported in December 2009 and January 2010. She reported pain across the top of the abdomen in January 2010. She continued to address abdominal issues and other medical concerns, such as hepatitis C in March 2010, with the abdomen noted to be nontender on examination. The report of a May 2010 VA examination to address the claimed residuals of the hiatal hernia included general findings on examination of the abdomen being soft and diffuse with non specific tenderness. There was mild guarding diffusely in the abdomen. On examination of the scar itself, it was noted to be a midline longitudinal scar in the epigastric region of the abdomen per previous surgery which measured 11 centimeters long by two centimeters wide (22 centimeters squared area). There was pain and tenderness associated with palpation of the scar. No skin breakdown was associated with the epigastric scar. The scar appeared superficial with no significant underlying soft tissue damage evident. No incisional hernia was evident. Also no ventral hernia was evident on examination. There was no inflammation, edema or keloid formation associated with the epigastric scar. The scar otherwise appeared benign. The diagnosis was scar on abdomen as residuals of epigastric herniorrhaphy. Under the pertinent rating criteria, the 10 percent rating presently in effect is assigned for the following: Scars, not affecting the head, face, or neck, that (1) are deep or cause limited motion and cover an area exceeding 6 square inches (39 sq. cm.) (a deep scar is one associated with underlying soft tissue damage); (2) are superficial, do not cause limited motion, and cover an area of 144 square inches or greater (a superficial scar is one not associated with underlying soft tissue damage); (3) are superficial and unstable (an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar); or (4) are superficial and painful on examination. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (in effect from August 30, 2002 to Sept. 23, 2008). It is noted that 10 percent is the maximum rating assigned for individual scars under Diagnostic Codes 7802, 7803 and 7804. A 20 percent disability rating is warranted when the scar area or areas exceed 12 square inches (77 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1), (2). (in effect from August 30, 2002 to Sept. 23, 2008). Diagnostic Code 7805 indicates that scars are to be rated on limitation of function of the part affected. 38 C.F.R. § 4.118. The Board has considered the evidence to include the treatment records, the Veteran's lay complaints of pain and tenderness, and the VA examination reports of August 2008 and May 2010 and finds the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected herniorrhaphy scar. While confirmed to be tender and painful on multiple occasions including both examinations and lay evidence including testimony, such complaints are contemplated by the 10 percent disability rating in effect. The scar is shown to be superficial without underlying tissue damage. The evidence does not reflect that the scar area exceeds 12 square inches (77 square centimeters), and there is not shown to be more than one surgical scar as a residual of this surgery. Thus, combining ratings for separate scars is not for consideration. Finally, the evidence fails to show that the scar results in any limitation of function. Therefore, the evidence does not support the assignment of a disability rating in excess of 10 percent under the applicable rating criteria. The Board notes that the rating criteria for scars were amended during the course of this appeal, effective October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (presently codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2013)). Nevertheless, the revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received. See 73 Fed. Reg. 54,708. As the Veteran's claim was filed prior to the effective date of the revised criteria, and the Veteran has not requested consideration of her claim under the revised criteria, those criteria are not for application. However, in this matter the RO appears to have considered both the pre-September 2008 criteria and the revised criteria in its Statement of the Case and Supplemental Statement of the Case. As the evidence of record does not reflect the presence of deep and nonlinear scars, superficial and nonlinear scars of an area of 144 square inches, unstable or three or more painful scars, consideration of the pertinent revised criteria would not afford a higher disability rating for the service-connected herniorrhaphy scar. Additionally, the Board notes that the RO in its March 2010 and October 2011 Supplemental Statements of the Case has also addressed whether a separate compensable disability rating is warranted under Diagnostic Code 7339 which provides the rating criteria for a postoperative healed ventral hernia. Under Diagnostic Code 7339, a noncompensable disability rating is warranted for postoperative wounds of a ventral hernia that are healed and result in no disability, with the use of a belt not indicated. The next higher 20 percent disability rating is warranted for a small postoperative ventral hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. See 38 C.F.R. § 4.114 (2013). None of the evidence reveals that the Veteran's hernia was recurrent; the May 2010 VA examination clearly described the absence of any hernia, either as a recurrence or an incisional hernia. Thus, a separate compensable rating is not warranted under the criteria for hernias. The Board has considered the statements of the Veteran as to the extent of her current symptoms. She is certainly competent to report that her symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Extra-schedular Consideration Finally, the Board finds that the Veteran's service-connected herniorrhaphy scar does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's service-connected herniorrhaphy scar is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER An initial disability rating in excess of 10 percent for service-connected herniorrhaphy scar is denied. REMAND Unfortunately, a remand is required in this case as to the issues of service connection for a gastrointestinal disorder, claimed as residuals of hernia surgery, to include as secondary to service-connected herniorrhaphy scar. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c), (d) (2013). The Board finds that the VA examination reports dated in August 2008 and May 2010 are inadequate, with the January 2008 examination not shown to include a complete review of all available evidence (as the Veteran was still undergoing private workup) and neither shown to provide adequate rationale for the unfavorable opinions addressing this claim. Moreover, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Neither examination has properly addressed the question of whether any digestive disorder present is being aggravated by the service connected residuals of the hernia surgery. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991), Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for her gastrointestinal disorder should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall take appropriate steps to contact the Veteran and request that she identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated her since service for her claimed disability. This shall specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran informed in writing. The Veteran may submit medical records directly to VA. 2. The RO/AMC shall schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of the claimed gastrointestinal disorder. The Veteran's claims file and a copy of this Remand must be provided to the examiner for review prior to completion of the examination. All tests deemed necessary by the examiner must be undertaken. The examiner is requested to respond to the following: (a) Is it at least as likely as not that the Veteran has a current gastrointestinal disorder that had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran has a gastrointestinal disorder that was caused (in whole or in part) by a service-connected disability, to specifically include the service-connected herniorrhaphy scar? (c) Is it at least as likely as not that the Veteran has a gastrointestinal disorder that is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include the service-connected herniorrhaphy scar? If the Veteran's current gastrointestinal disorder is aggravated by a service-connected disability, the examiner shall, to the extent possible, also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a gastrointestinal disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. All opinions and conclusions expressed must be supported by a complete rationale. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and her representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2013). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs