Citation Nr: 1609906 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 14-24 876A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an earlier effective date prior to March 12, 2014, for the assigned 100 percent rating for recurrent ventral hernia. ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1990 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA), which increased the Veteran's rating for his ventral hernia to 100 percent disabling, effective March 12, 2014. A review of the Virtual VBMS paperless claims processing system was conducted. FINDINGS OF FACT The effects of the Veteran's hernia have been substantially the same throughout the appeal period; the Veteran's ventral hernia has been characterized as massive, 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. CONCLUSION OF LAW The criteria for an effective date of July 10, 2009, the date of claim, for the award of a 100 percent disability rating for ventral hernia, have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400, 4.130 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of a 10 percent rating for his service-connected ventral hernia. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and 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). No additional discussion of the duty to notify is therefore required. With regard to the duty to assist, the Board notes that the Veteran's service treatment records and post-service medical records have been obtained. There is no indication that any additional evidence, relevant to the issue decided, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. Earlier Effective Date - Ventral Hernia The Veteran claims that his current service-connected disability of a recurrent ventral hernia, which is currently rated at 100 percent from March 12, 2014, should at least start during his initial grant for service connection. Specifically, the Veteran claims that the severity of his condition has not changed since he first filed his claim, and that no new medical evidence has been submitted to demonstrate his condition was different after March 12, 2014. After a review of the evidence of record, to include several VA Compensation and Pension (C&P) examinations, medical treatment records, and the Veteran's statements, the Board agrees. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. However, the Board notes that different statutory and regulatory provisions apply depending on whether the claim is an original claim or one for increased compensation. See 38 C.F.R. §§ 3.400(b)(2)(i), 3.400(o)(2). As the effective date issue on appeal for the Veteran's ventral hernia stem from an increased rating claim for an already service-connected disabilities, the provisions for earlier effective dates for an initial rating following the grant of service connection does not apply. See Rice v. Shinseki, 22 Vet. App.447, 453-54 (2009). The method for determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2) and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 38 U.S.C.A. § 5110 (b)(2). See 38 C.F.R. § 3.400(o)(2). In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." Id. The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred no more than one year prior to filing the claim for an increased rating. See Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R § 3.400 means an increase to at least the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). By way of procedural history, the Board notes that the Veteran was granted service connection for his recurrent ventral hernia in December 2009, and assigned a non-compensable rating. At the time, this rating was not initially appealed within the year appeals period after the issued date of the rating. However, in November 2011, VA acknowledged a notice of disagreement (NOD) from the Veteran stating that he had previously sent in a timely NOD to the rating assigned for the disability in question. While no such notice is of record, the RO construed the letter as a claim for increased rating for his service-connected ventral hernia. In April 2013, the RO denied the Veteran's increased rating claim and continued his non-compensable rating. The Veteran filed a timely appeal, and in March 2014, the RO issued another rating decision which granted the Veteran's claim for increased rating and assigning a 100 percent rating for his ventral hernia from March 12, 2014. Ultimately, the Board finds that the Veteran has continuously prosecuted his claim since the date he first filed for service connection, July 10, 2009. As noted above, the effective date of a rating is established by the date the Veteran's claim for increased rating was received, or the date in which the disability arose to the level in which the increased rating is based, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Here, the threshold question is when the Veteran's disability arose to the level of severity as to warrant a 100 percent rating. To this end, the Veteran has extensively claimed that his condition has been no different than when he initial filed his claim. He notes that he has not submitted any additional medical information since 2009 and that previous examinations provided to him were inadequate in assessing the functional impact and severity of his service-connected ventral hernia. As such, he claims that his current 100 percent rating should be brought back to July 2009, when he was initially award service connection. The Veteran's condition is currently rated under Diagnostic Code 7339, for ventral hernia, massive, persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable warrants a 100 percent rating. Large hernia, not well supported by belt under ordinary conditions, warrants a 40 percent rating. Small, 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 warrants a 20 percent rating. Wounds, postoperative, healed, no disability, belt not indicated, warrants a noncompensable rating. 38 C.F.R. § 4.114, Diagnostic Code 7339 (2015). The Veteran was afforded several VA C&P examination for his ventral hernia throughout the claims period, to include in November 2009, July 2013 and March 2014. In his most recent examination in March 2014, the Veteran was diagnosed with recurrent ventral hernia with repair scars. The examiner, after a review of the Veteran's medical history and an in-person examination, noted a large hernia in the Veteran's abdomen along with persistent weakening of the abdominal wall with indication for supporting belt, severe diastasis of recti muscles, and extensive diffuse destruction/weakening of muscular and fascial support of abdominal wall. The examiner also concluded functional loss to the Veteran's ability to lift and bend over, with limited ability to walk for prolonged periods of time. The Board notes that the Veteran's March 2014 examination demonstrates a level of severity for his condition that warrants a 100 percent rating under the appropriate Diagnostic Code detailed above. See 38 C.F.R. § 4.114, Diagnostic Code 7339 (2015). As such, the Veteran was granted a 100 percent rating from, and, based on this March 2014 examination. See Rating Decision dated March 20, 2014. However, a close review of all previous VA examinations conducted prior to March 2014, reveals inconsistency and incompleteness in the data that was captured. Specifically, in July 2013, less than a year prior to the Veteran's effective date, the VA examination revealed no evidence of an indication for supporting belt, no issues with recti muscles, or issues with the abdominal wall. The examiner noted only some recurrent pain in the Veteran's abdomen and a large hernia. Likewise, the November 2009 examination also revealed only normal findings with a large hernia detected and complaints of pain. However, no comments were made one way or the other regarding a belt for support. As noted above, a compensable, 20 percent rating, requires a hernia that is 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. A close review of the treatment records prior to 2014 was also conducted; however, again, they revealed little evidence of any of the requisite symptoms necessary to warrant a 100 percent rating. Indeed, most of the records only indicate that the Veteran suffered from ventral hernia and that he experienced pain in that area of his body. However, there is also no evidence that contradicts the Veteran's contentions as to the severity and stability of his disability. The Board has also considered the Veteran's argument that his pervious VA examinations were inadequate, and therefore, failed to assess the true nature and severity of his disability. Specifically, he argues that the fact that the March 2014 examination came up with different symptoms than that of the previous examinations, when the medical history and treatment records he submitted had not changed since 2009, demonstrates an error in the previous examinations. See VA Form 9, dated July 2014. The Board agrees that the facts of this case do not fit; however, the Veteran should not be punished for inadequate examinations. Rather, the Board finds that in fact the 2014 examination is the most probative medical evidence of record and places the greatest weight upon it and the Veteran's competent and credible description of his symptoms throughout the appeal period. As such, the Board finds a 100 percent rating is warranted from the date the Veteran filed his claim, July 10, 2009. ORDER An effective date of July 10, 2009 for a 100 percent rating for the Veteran's service-connected ventral hernia is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs