Citation Nr: 1341272	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  09-47 413	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an effective date earlier than January 20, 2009 for the grant of service connection for a supraumbilical hernia.

2.  Entitlement to an initial compensable rating for supraumbilical hernia.

3.  Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for convalescence for supraumbilical hernia surgery.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

L. Edwards, Counsel


INTRODUCTION

The Veteran had active service from November 1960 to December 1962 and January 1963 to March 1988.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The Veteran now resides in Virginia, so the matter is now handled by the RO in Roanoke, Virginia.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal for a higher initial rating claim when such claim is raised by the record.  Here, the Board notes that the Veteran indicated that his hernia caused him to stop working.  See November 2009 VA Form 9.  As such, the Board finds that the record raises a claim for TDIU.

The issue of entitlement to TDIU 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.


FINDINGS OF FACT

1.  A claim for service connection for a supraumbilical hernia was received in November 2006 and was denied in an August 2007 rating decision; the Veteran did not submit a timely substantive appeal, and that decision is final.

2.  An additional claim for a supraumbilical hernia was received in January 2009, and the Board granted service connection for this disorder in a May 2009 rating decision, effective January 20, 2009.

3.  The date of receipt of the claim, January 20, 2009, is later than the date entitlement arose for a supraumbilical hernia, thus, entitlement to service connection arose as of the date of the claim.   

4.  The Veteran's supraumbilical hernia is asymptomatic and a belt is not required.

5.  The Veteran's supraumbilical hernia surgery in December 2008 occurred prior to the effective date of the grant of service connection, and the evidence does not indicate that the surgery resulted in at least one month of post-operative convalescence, severe post-operative residuals, or immobilization by cast of one major joint or more.
 

CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than January 20, 2009 for the grant of service connection for a supraumbilical hernia have not been met.  38 U.S.C.A. § 5110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400 (2013). 

2.  The criteria for an initial compensable rating for a supraumbilical hernia are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7339 (2013). 

3.  The criteria for a temporary total rating under 38 C.F.R. § 4.30 (based on a need for convalescence) are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.30 (2013).



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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013).  Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the regional office.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran's claim for an increased rating arises from his disagreement with the initial evaluation following the grant of service connection.  It has been held that once service connection is granted, the claim is substantiated and additional notice is not required.  Any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Board also notes that since the issue of entitlement to an earlier effective date for the grant of service connection for a supraumbilical hernia is a downstream issue from that of service connection (for which a VCAA letter was duly sent in February 2009), another VCAA notice is not required.  VAOPGCPREC 8-2003 (Dec. 22, 2003). 

The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2009 that fully addressed all notice elements.  The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran and VA's respective duties for obtaining evidence.  In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim.  See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005).  An additional letter was sent in May 2009.

Next, VA has a duty to assist the Veteran in the development of the claims.  This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary.  
Bernard v. Brown, 4 Vet. App. 384 (1993).

Service treatment records are associated with the claims file, as are private medical records and post-service VA examination and treatment records.  Virtual VA records have been reviewed.  There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder.  

The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.

II.  Entitlement to an Effective Date Earlier than January 20, 2009 for the Grant of Service Connection for a Supraumbilical Hernia

The Veteran is seeking an effective date earlier than January 20, 2009 for the grant of service connection for a supraumbilical hernia.  He asserts the effective date should be in 1988, when he separated from service, as a hernia was noted on his separation examination, or the original date of his first claim in November 2006.

The Board notes the Veteran first submitted a claim for a supraumbilical hernia in November 2006.  Entitlement to service connection for this disorder was denied in an August 2007 rating decision.  The Veteran did not initiate an appeal for the denial of service connection.  As such, the August 2007 rating decision denying a supraumbilical hernia became final.  In January 2009, the Veteran submitted an additional claim for a supraumbilical hernia.  In a May 2009 rating decision, the RO granted service connection for a supraumbilical hernia, effective January 20, 2009.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2).

The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). 

In the present case, the Veteran separated from his final tour of active duty in March 1988.  He did not raise a claim of entitlement to service connection for a supraumbilical hernia within a year from discharge.  Rather, the Veteran first raised a service connection claim for this disorder in November 2006, more than fifteen years after service.  That claim was denied in an August 2007 rating decision, which became final when the Veteran did not perfect an appeal within the statutory time limit.

Again, because the Veteran did not apply for service connection for a supraumbilical hernia within one year of separation from service, an effective date back to the day following discharge is not possible.  

For reopened claims, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400.
As stated previously, a claim for a supraumbilical hernia was submitted in November 2006; however, that claim was denied in an August 2007 rating decision, and the Veteran did not perfect a timely appeal.  The August 2007 decision is final.

The Veteran then submitted a claim for a supraumbilical hernia in January 2009, which was granted in a May 2009 rating decision.  As indicated in the treatment records, the Veteran underwent hernia surgery in December 2008.  Therefore, the appropriate effective date is the date of the receipt of the claim, since it was later than the date entitlement arose.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).  

The Board has also considered whether any evidence of record prior to January 20, 2009, could serve as an informal claim in order to entitle the Veteran to an earlier effective date.  In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155.  

The Board has reviewed the evidence to determine whether any communication submitted by the Veteran indicates an attempt to apply for service connection for a supraumbilical hernia.  However, after the final August 2007 rating decision, he did not submit any evidence pertinent to the hernia until January 2009.

In sum, the presently assigned effective date of January 20, 2009 is appropriate and there is no basis for an award of service connection for a supraumbilical hernia prior to that date.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990).  



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III.  Entitlement to an Initial Compensable Rating for a Supraumbilical Hernia

The Veteran seeks an initial compensable rating for his supraumbilical hernia.  He asserts his disability is more severe than what is represented by a noncompensable rating.

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. 

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 May 2009, the RO granted service connection and assigned a noncompensable initial rating for a supraumbilical hernia, effective January 20, 2009.  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.  

Under Diagnostic Code 7339, a noncompensable rating is warranted for healed postoperative wounds, no disability, and a belt is not indicated.  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 compensable rating is not warranted. 

Applying the demonstrated symptoms of the Veteran's hernia to the rating criteria, the Board notes that a compensable rating, of 20 percent, would require a showing of a small hernia not well supported by a belt under ordinary conditions or a healed hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt.  See 38 C.F.R. § 4.114, DC 7339.  The medical evidence of record does not demonstrate that the criteria for this higher rating are met. 

Private records indicate that the Veteran sought treatment for an abdominal wall hernia in December 2008, at which time he was diagnosed with an incarcerated supraumbilical hernia.  He underwent surgery in December 2008, and the Operation Report indicated that blood loss was minimal and the Veteran tolerated the procedure. 

The Veteran's physician submitted a statement in March 2009, indicating that the Veteran had surgical repair of an incarcerated umbilical hernia in December 2008 with good results.

The Veteran was afforded a VA examination in September 2013.  It was noted that the condition began in 1987, but had no current symptoms.  The Veteran was noted to have a surgical scar that was not painful or unstable and was not greater than 6 square inches.  The examiner noted that the Veteran's hernia did not affect his ability to work.  The examiner stated that the Veteran had an umbilical herniorrhapy in January 2009, without any recurrence or sequelae.

The Board finds that the medical evidence does not show a small hernia not well supported by a belt under ordinary conditions or a healed hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt.  Rather, the evidence shows that the Veteran underwent a herniorrhapy without any recurrence or sequelae and is currently asymptomatic.  Therefore, the criteria for a compensable rating under Diagnostic Code 7339 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 supraumbilical 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 10 and 30 percent for injuries that are moderately and moderately severe, respectively.  38 C.F.R. § 4.73, Diagnostic Code 5319.  As the medical evidence does not demonstrate this degree of injury to any abdominal muscle, DC 5319 is not applicable. 

Under DC 7338, a 10 percent rating is assignable for a postoperative recurrent, readily reducible hernia that is not well supported by truss or belt.  In this case, there is no evidence that the Veteran's hernia is recurrent or that it is not well supported by truss or belt.  Moreover, the Veteran's hernia is currently asymptomatic.  Thus, the Board finds no basis for an assignment of a higher rating by analogy to an inguinal hernia under DC 7338. 

The above-noted determination is 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 supraumbilical 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).

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 supraumbilical hernia under consideration at all pertinent points.  The criterion applicable to the supraumbilical hernia contemplates the described symptomatology, and provide for ratings higher than that assigned based on more significant functional impairment.  Significantly, the Veteran's hernia is asymptomatic for the entire time period on appeal.  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 an initial compensable rating must be denied.  In reaching these conclusions, the Board notes that 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).

IV.  Entitlement to a Temporary Total Rating Pursuant to 38 C.F.R. § 4.30 for Convalescence for Supraumbilical Hernia Surgery

The Veteran seeks a temporary total rating for a period of convalescence following his hernia operation in December 2008.  

A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted (under the conditions discussed below) for a period of one, two, or three months.  Awards are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release.  See 38 C.F.R. § 4.30.

Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals such as incomplete healed surgical wounds, therapeutic immobilization of a one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or, (3) immobilization by cast, without surgery, of one major joint or more.  See 38 C.F.R. § 4.30(a).

Initially, the Board notes that service connection is in effect for a supraumbilical hernia, rated noncompensably disabling, effective January 20, 2009.  The Veteran seeks entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for convalescence due to undergoing hernia surgery in December 2008.

The Board does not dispute that the Veteran underwent hernia surgery in December 2008; importantly, however, this surgery occurred prior to the effective date of service connection for the hernia, thus the § 4.30 regulations do not apply.  Furthermore, there is no evidence of record indicating that the Veteran's surgery necessitated at least one month of post-operative convalescence or that the surgery resulted in severe post-operative residuals such as incomplete healed surgical wounds, therapeutic immobilization of a one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited) or, immobilization by cast, without surgery, of one major joint or more.  The Veteran's December 2008 Operative Report indicated that the Veteran suffered minimal blood loss and tolerated the procedure.  See December 2008 Operation Report.  Therefore, entitlement to a temporary total convalescence rating is not warranted under 38 C.F.R. § 4.30.  

The Board acknowledges 38 C.F.R. § 4.29, which discusses ratings for service-connected disabilities requiring hospital treatment or observation; however, such provision is also inapplicable as there is no indication the Veteran required hospital treatment for a period in excess of 21 days at a VA or approved hospital for his service-connected hernia. 


ORDER

Entitlement to an effective date prior to January 20, 2009 for the grant of service connection for a supraumbilical hernia is denied.  

Entitlement to an initial compensable rating for a supraumbilical hernia is denied.

Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for convalescence for supraumbilical hernia surgery is denied.


REMAND

Pertinent to a potential TDIU claim, as noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice, 22 Vet. App. at 453-54.  

While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claim, further development is necessary for a fair adjudication of the TDIU aspect of such claim.

Evidence on file indicates that the Veteran reported he stopped working due to his hernia.  See November 2009 VA Form 9.

Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim and should clarify whether he wishes to pursue this claim.  In addition, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary to develop the TDIU claim.  

After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16(a) and (b), as applicable. 

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU.

The RO should also ascertain whether the Veteran wishes to pursue a TDIU claim.  In the event that he does, further action as described herein should be taken.  In the event that he does not, this fact should be annotated for the file and no further action is required.

2.  Obtain and associate with the claims file all updated treatment records.

3.  After the above development has been completed, if necessary, schedule the Veteran for a VA examination to evaluate the impact his service-connected disabilities have on his employability.  The examiner must review the claims file and should note that review in the report.  The examiner must take a history of the Veteran's educational and employment background.  

The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent) that the Veteran's service-connected disabilities (hypertensive heart disease, hypertension and supraumbilical hernia), either singularly or jointly and without consideration of his nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation.  

The examiner should consider such factors as the Veteran's education level, special training, and work experience. 

In offering any opinion, the examiner should consider all the evidence of record, to include the lay statements submitted by or behalf of the Veteran.  The rationale for any opinion offered should be provided.

4.  The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 

5.  After all of the above actions have been completed, readjudicate the claim.  If the claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case. 

The Veteran 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).

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).


______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs