Citation Nr: 1602272 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 08-29 734A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable disability rating (or evaluation) for residuals of a ventral hernia for the period from March 6, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1969 to March 1972, and from July 1982 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board has reviewed the electronic files on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. The issue of a higher initial disability rating for the service-connected residuals of a ventral hernia was before the Board in July 2012 and October 2014. In October 2014, the Board denied a compensable initial disability rating for residuals of a ventral hernia for the period prior to March 6, 2013. The Board remanded the issue of a higher initial disability rating for residuals of a ventral hernia for the period from March 6, 2013 for additional development. The additional development, which included obtaining VA treatment records, has been completed and the matter has been properly returned to the Board for appellate consideration. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). An additional discussion of the RO's compliance with the October 2014 Board Remand is included in the Duties to Notify and Assist section below. FINDING OF FACT For the initial rating period from March 6, 2013, the residuals of a ventral hernia have included healed postoperative wounds without additional disability or a supporting belt. CONCLUSION OF LAW The criteria for a compensable disability rating for residuals of a ventral hernia have not been met or more nearly approximated for the entire rating period from March 6, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.114, Diagnostic Code 7339 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In the appeal for a higher initial disability rating for residuals of a ventral hernia, because the appeal arises from disagreement with the initial rating following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board concludes that VA has satisfied its duties to assist the Veteran. VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service VA and private treatment records, Social Security Administration (SSA) disability benefit records, a May 2008 VA examination report, and the Veteran's lay statements. Pursuant to the October 2014 Board Remand, the VA treatment records include March 2013 treatment records related to the residuals of a ventral hernia. While not within the appeal period from March 6, 2013, VA most recently examined the Veteran in May 2008. The Board remanded the issue of a higher initial disability rating for residuals of a ventral hernia in July 2012 to provide the Veteran with a more recent VA examination to assist in determining the severity of the residuals of a ventral hernia. In order to comply with the July 2012 Board Remand, VA twice attempted to schedule the Veteran for examinations in August and December 2012. See September 2012 and February 2013 Report of General Information forms. VA's efforts to obtain such examinations were frustrated by the Veteran due to his failure to report to the examinations. 38 C.F.R. § 3.655(a) (2015) provides that when entitlement to a benefit sought cannot be established without a current VA examination or reexamination and a claimant fails to report for such examination without good cause, original claims should be rated on the evidence that is of record. 38 C.F.R. § 3.655(b) (2015). An initial rating is a downstream element of the original claim for service connection for ventral hernia. The Veteran was advised as much in the Board's July 2012 Remand and in the February 2013 supplemental statement of the case. The Veteran explained that he did not show for his first scheduled VA examination because he was under stress taking care of his father, as well as making arrangements for his step-father's funeral. Because good cause was shown, VA rescheduled examinations for the Veteran in December 2012. The Veteran did not attend the rescheduled examination, and has not shown good cause for failure to attend. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon a veteran to submit to a VA examination if a veteran is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a). By the Veteran's failure to report for the scheduled examinations, he has not satisfied his responsibilities in the development of the claim. In light of the foregoing, the Board finds that VA has developed all relevant facts to the extent possible, and that no further assistance to the Veteran in developing the facts pertinent to the duty to assist is required. Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id.; 38 C.F.R. § 4.2. The appeals has already been bifurcated based on distinct periods for which evidence needed to be obtain; however, for the remaining undecided period from March 3, 2013, the Board finds that staged ratings are not necessary. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). Initial Rating for Residuals of a Ventral Hernia from March 6, 2013 The RO granted service connection for residuals of a ventral hernia in a January 2008 rating decision, which assigned an initial noncompensable (0 percent) disability rating, effective October 1, 2007. In March 2008, the Veteran filed a notice of disagreement with the initial noncompensable rating for residuals of a ventral hernia, but did not discuss any specific symptoms or impairment. As noted above, in October 2014, the Board denied the issue of a higher initial rating for residuals of a ventral hernia for the period prior to March 6, 2013; therefore, that aspect of the issue is no longer before the Board. For the entire initial rating period from March 6, 2013, the service-connected residuals of a ventral hernia have been rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7339. Under Diagnostic Code 7339, a noncompensable rating is assigned for healed postoperative wounds when there is no related disability and a belt is not indicated. A 20 percent rating is warranted for a small postoperative ventral hernia which is not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wound with weakening of the abdominal wall and indications for a supporting belt. Id. On review of all the evidence, lay and medical, the Board finds that, for the initial rating period from March 6, 2013, the residuals of a ventral hernia have included healed postoperative wounds without additional disability or a supporting belt. VA most recently examined the hernia residuals in May 2008. The May 2008 VA examiner observed that a prior surgical incision was well healed and that no hernia was present. There was some tenderness to deep pressure on the abdomen. The May 2008 VA examiner opined that the ventral hernia had been successfully repaired. In October 2008, the Veteran complained that hernia mesh was causing increased disability. See October 2008 VA Form 9. As noted above, the Veteran did not report to the subsequently scheduled VA examinations that was ordered to assess the current severity of the ventral hernia residuals. On March 6, 2013, the Veteran presented to a VA Medical Center with complaints of a small hard knot in the umbilical area that leaks puss. The Veteran denied pain and expressed disinterest in pursuing removal of mesh. The VA physician ordered a CT scan of the abdomen for a future appointment; however, VA treatment records through January 14, 2014 indicate that no CT scan was performed at a VA Medical Center. In sum, a hernia was not found during the most recent VA hernia examination, nor was there weakening of the abdominal wall or any indication for a supporting belt. In March 2013, the Veteran reported that puss leaks from a small hard knot in the umbilical area; however, the evidence does not demonstrate residuals of a ventral hernia such as a weakened abdominal wall or indication for a supporting belt. For these reasons, the Board finds that, for the initial rating period from March 6, 2013, the criteria for a compensable schedular rating under Diagnostic Code 7339 have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7339. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2015); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the schedular rating criteria for rating ventral hernia residuals are adequate to rate the Veteran's service-connected residuals of a ventral hernia, and no referral for extraschedular consideration is required. Diagnostic Code 7339 specifically addresses postoperative ventral hernias and provides a series of disability ratings based on common residual symptoms and impairment. Here, the ventral hernia residuals include a healed wound site, and the Veteran has reported puss leaking in the area. While puss leakage is not a symptom listed in Diagnostic Code 7339, the evidence generally shows a healed hernia with no significant residual symptoms. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the service-connected residuals of a ventral hernia and no extraschedular referral is warranted. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. The Veteran is service connected for residuals of ventral hernia, residuals of small bowel obstruction, residuals of cervical spine fracture, and residuals of right side orbital fracture. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Lastly, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not alleged, and the evidence does not suggest, inability to secure or follow substantially gainful employment due to the service-connected residuals of a ventral hernia; therefore, the Board finds that the issue of entitlement to a TDIU has not been reasonably raised by the record or by the Veteran. See id. at 453-54. ORDER For the entire initial rating period from March 6, 2013, a compensable disability rating for residuals of a ventral hernia is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs