Citation Nr: 1609880 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 14-10 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected residuals of periumbilical herniorrhaphies. 2. Entitlement to a disability rating in excess of 10 percent for a scar due to multiple periumbilical herniorrhaphies for recurrent ventral hernias (hernia scars). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.W. Walker, Counsel INTRODUCTION The Veteran served on active duty from July 2001 to September 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the claims on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS). The issue of service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's two painful hernia scars do not measure more than 77 square centimeters or greater, nor has the postoperative ventral hernia been manifested by weakening of the abdominal wall and indication for a supporting belt. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for hernia scars are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.118, Diagnostic 7804; 38 C.F.R. § 4.114 , Diagnostic Code 7339 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in her possession that pertains to the claim has been eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in December 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio, at 187. The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The letter informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (stating that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced national service organization in this matter who has submitted argument in support of her claim. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for her to prevail on her claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that she wanted VA to obtain or that she felt was relevant to the claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). The RO provided the Veteran appropriate VA examinations most recently in September 2015. The VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the September 2015 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, she should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The rating criteria for scars are provided generally under 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, and 7804. Under Diagnostic Code 7805, any disabling effects that are not considered in the aforementioned scar rating criteria may also be rated under a diagnostic code that is appropriate for the disabling effect. The Board notes that the criteria under Diagnostic Code 7800 contemplate scars that are specifically of the head, face, or neck. Hence, Diagnostic Code 7800 is not for application in this case. Diagnostic Code 7801 concerns scars not of the head, face, or neck, but which are deep and nonlinear. A 10 percent evaluation is assigned for such scars encompassing an area or areas of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A 20 percent evaluation is assigned for such scars encompassing an area or areas of at least 12 square inches (77 sq. cm.), but less than 72 square inches (465 sq. cm.). A 30 percent evaluation is assigned for such scars encompassing an area or areas of at least 72 square inches (465 sq. cm.), but less than 144 square inches (929 sq. cm.). A 40 percent evaluation is assigned for such scars encompassing an area or areas of 144 square inches (929 sq. cm.) or greater. Notes accompanying Diagnostic Code 7801 define deep scars as those associated with underlying tissue damage. Diagnostic Code 7802 contemplates scars that are superficial and nonlinear, and which do not involve the head, face, or neck. Under that rating code, a maximum schedular 10 percent disability rating may be assigned for scars encompassing an area of 144 square inches (929 square centimeters) or greater. As the criteria under the code does not provide for a rating higher than 10 percent, Diagnostic Code 7802 does not assist the Veteran in obtaining a higher initial disability rating for her residual surgical scar. The Veteran's hernia scar is evaluated at 10 percent disabling under Diagnostic Code 7804. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Factual Background and Analysis The Veteran contends that her hernia scar warrants an initial rating in excess of 10 percent. By way of background, the RO awarded service connection for residuals hernia scars in a February 2006 rating decision. It assigned a 10 percent rating, effective September 25, 2005. The Veteran filed her most recent request for an increase in November 2010. In conjunction with her request for increase, the Veteran was afforded a VA examination of her scars in January 2011. She endorsed skin breakdown, pain, and soreness in the area of the scar. The examiner described the scars as follows: There is a scar on the anterior side of the trunk precisely located midline umbilical area. This is a linear scar. The entire scar measures 1.5 cm by 20 cm. The scar is painful on examination. There is skin breakdown. This is a deep scar with underlying tissue damage. Inflammation is absent. Edema is absent. There is a keloid formation described as along entire scar. The scar is disfiguring. The scar does not limit the claimant's motion. There is no limitation of function due to the scar. The examiner indicated that the Veteran has had to take off time from work and school due to her scars. In April 2011, the Veteran was afforded another VA scars examination, during which the examiner found no evidence of skin breakdown of the scars. The examiner noted, however, that the Veteran scar limits her ability to do any heavy lifting or bend. The examiner described the scar as follows: There is a scar on the anterior side of the trunk precisely located on mid ventral abdominal wall. This is a linear scar. The entire scar measures 11 cm by 1 cm. The scar is not painful on examination. There is no skin breakdown. This is a superficial scar with no underlying tissue damage. Inflammation is absent. Edema is absent. There is no keloid formation. The scar is not disfiguring. The scar does not limit the claimant's motion. There is no limitation of function due to the scar. In October 2012, the Veteran underwent another VA examination for her scars. Currently, the Veteran denied any skin breakdown, but endorsed pain. Physical examination revealed a healed scar in the midline abdominal line, but the examiner noted it was not painful, nor was there any skin breakdown. The Veteran did not have any edema or inflammation in the area of the scar, nor was there any functional limitation. The examiner addressed the conflicting evidence as described in the January 2011 and April 2011 VA examinations regarding whether there was any skin breakdown or painful scars. The examiner concluded that the Veteran no longer had any skin breakdown in her hernia scars at the time of the April 2011 examination, but does have pain as described. During a September 2015 VA examination, the Veteran was noted to have a 12 cm by 1.5 cm nonlinear, stable, well-healed, non-tender abdominal scar status-post ventral hernia repair. During the appeal period, the Veteran has continued to be treated at the VA Medical Center for her scar complaints. The clinicians have noted a history of hernia repairs, abdominal pain, and pain in the scar area. Upon careful review of the record, the Board finds that the preponderance of the evidence is against awarding a higher rating for the Veteran's hernia scars. First, the most probative evidence shows that the Veteran has no more than two scars related to her ventral hernia repairs. The VA examiners have mainly addressed the one main scar in the abdomen, which is less than 144 square inches. At times the scar has been variously described as well-healed, linear, nonlinear, deep, tender, nontender, underlying tissue damage, no underlying tissue damage, skin breakdown, and no skin breakdown. Even assuming the worst symptoms-that the Veteran's scar is deep, causes underlying tissue damage, is painful/tender, causes skin breakdown, and is nonlinear, the Veteran would still not be entitled to a rating in excess of 10 percent. Importantly, the scar does not cover an area exceeding 12 square inches to qualify for a higher rating under Diagnostic Code 7801, nor does the evidence of record show that the Veteran has three to four scars that are unstable or painful to warrant a higher rating under Diagnostic Code 7804. The evidence does not show any significant functional impairment associated with the Veteran's hernia scars. The VA examiners have specifically found that although she experiences pain, her hernia scars do not cause functional impairment or limitation of motion. Indeed, the Veteran has some restrictions related to bending over and heavy lifting. She has reported significant abdominal pain and the September 2015 VA examiner noted her complaints are due to an abdominal/inguinal condition, not a stomach/duodenum condition. As noted in the Remand section below, the Board is remanding the issue of entitlement to GERD as secondary to her ventral hernia surgery residuals. The Board has also considered whether the Veteran would be entitled to a separate rating for umbilical hernia under 38 C.F.R. § 4.114 , Diagnostic Code 7339. That Code assigns a noncompensable rating for postoperative ventral hernia when the postoperative wounds are healed, there is no disability, and a belt is not indicated. A 20 percent rating is assigned for postoperative ventral hernia that is small, not well supported by a belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt. Here, the clinical evidence of record does not show any weakening of the Veteran's abdominal wall or need for a supporting belt, nor has the Veteran contended otherwise. Indeed, she has been told by clinicians to be cautious with lifting or bending over, but has not otherwise shown functional impairment due to her residuals of the ventral hernia repairs. The Veteran is competent to describe symptoms she experiences such as pain when she lifts heavy objects or bends over. See Barr, 21 Vet. App. 303. However, as a lay person, the Veteran is not competent to provide a medical assessment regarding the relative size of a ventral hernia, the extent to which a ventral hernia is supported by a belt or weakening of the abdominal wall. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Board finds her complaints of pain and tenderness in the area of the postoperative ventral hernia and scars to be credible and generally supported by medical evidence of record, the competent medical evidence does not reflect, and the Veteran has not suggested, that her postoperative ventral hernia is manifested by weakening of the abdominal wall and indication for a supporting belt. For these reasons, the Board finds that a separate, compensable rating for residuals of umbilical hernia repair is not warranted. Again, although the Veteran is competent to report that her disability worse than presently rated, the question of whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that she meets the criteria for the next higher disability rating for her scars, the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability for her hernia repair scars. Furthermore, there is no basis for a staged rating for this disability. Neither the lay nor the medical evidence reflects that the disability meets the criteria for a rating higher than 10 percent at any time during the appeal period. As such, the Board finds that a uniform disability rating is appropriate for this disability. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board also finds no other diagnostic codes would be appropriate to evaluate the Veteran's hernia scars or residuals of ventral hernia surgery. See Schafrath, 1 Vet. App. at 595. Ultimately, the Board finds that the preponderance of the evidence is against awarding a disability rating in excess of 10 percent for the Veteran's service-connected hernia scars. Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hernia scars is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hernia scars with the established criteria shows that the rating criteria reasonably describe her disability level and symptomatology with respect to both her symptoms and functional impact. Specifically, the Veteran primarily reports abdominal pain, difficulty bending, and difficulty with heavy lifting. The current 10 percent rating under Diagnostic Code 7804 is specific for such symptomatology. Thus, the Veteran's current schedular rating is adequate to fully compensate her for her disability on appeal. Under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Notably, the Veteran is also service connected for depressive disorder. Neither the Veteran nor her representative has indicated any specific service-connected disabilities which are not captured by the schedular evaluations of the Veteran's individual service-connected conditions. After applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). The Board notes that the record shows that the Veteran is employed and/or attending school, and has not contended she is unemployable due to her service-connected hernia scars. Further, there is no suggestion, either from the Veteran or from the evidence itself, that the service-connected hernia scars have a profound effect on her ability to work in and of themselves. Therefore, the Board finds that this appeal does not encompass a TDIU claim at this time. ORDER Entitlement to a disability rating in excess of 10 percent for hernia scars is denied. REMAND The Board finds that further development is necessary regarding the service connection claim for GERD. In March 2012, the Veteran was afforded a VA examination to determine the nature and etiology of the claimed GERD. Although the examiner provided a detailed opinion with rationale as to whether the Veteran's GERD was related to her service-connected residuals of recurrent ventral hernias, the examiner did not provide an adequate opinion as to whether the GERD was aggravated by the service-connected residuals of recurrent ventral hernias. The Veteran was afforded VA examination in September 2015, during which the examiner found no current evidence of a stomach condition. However, there is evidence that she has been diagnosed as having GERD during the course of the appeal. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). As such, the medical evidence is insufficient for determining entitlement to GERD on a secondary basis and the claim must be remanded for a supplemental opinion. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's electronic claims file to an appropriate examiner for a supplemental opinion regarding her GERD claim. It is left to the examiner's discretion whether to examine the Veteran. Access to the electronic claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should list any stomach conditions present at any time during the appeal period. After reviewing the file, the examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has GERD or other stomach/gastrointestinal condition that has been caused or aggravated by her military service, or caused or aggravated (chronically worsened) by a service-connected disability (including residuals of ventral hernia surgeries with residual scars). The examiner is asked to specifically discuss whether the impact the Veteran's hernia scars have on her claimed GERD. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. 2. Perform any additional development deemed necessary. 3. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence, and all issues on the title page should be readjudicated. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs