Citation Nr: 1628378 Decision Date: 07/15/16 Archive Date: 07/28/16 DOCKET NO. 11-06 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for post-surgical hernia of the abdominal wall. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to his service connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1983 to September 2003. This case comes before the Board of Veterans' Appeals (the Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board in October 2014. At that time, the Board remanded the issue of entitlement to an initial disability rating in excess of 20 percent for post-surgical hernia of the abdominal wall to the RO to complete additional development. That development was completed and the matter is before the Board once again. The Veteran appeared at a video conference hearing at the RO in August 2014 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Id. at 453-54. In this case, the Veteran stated in his September 2011 correspondence that he did not know if he would ever be able to hold any kind of full-time employment because of all the accommodations that he would require. In his January 2012 notice of disagreement, the Veteran specifically referenced a claim for individual unemployability. Therefore, the issue of entitlement to TDIU has been raised by the record. However, as addressed below, additional development is required to adjudicate this claim. Additionally, the Court of Veterans Appeals (Court), has found the principle of seeking the maximum benefit also means that entitlement to special monthly compensation (SMC) is an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). If the Veteran did have a single disability that was rated at 100 percent and an additional disability or disabilities that could be rated at 60 percent, the issue of entitlement to SMC benefits would be raised. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015); see Bradley v. Peake, 22 Vet App 280 (2008). As the record stands, it is unclear as to whether the Veteran has a single disability that may be rated at 100 percent because the issue of the TDIU claim has not been resolved. See Bradley v. Peake, 22 Vet App 280 (2008); Buie v Shinseki, 24 Vet App 242 (2010) (finding TDIU based on a single service-connected disability satisfies the requirement of a single disability rated at 100 percent for purposes of SMC benefits). Further, there is no lay or medical evidence that the Veteran is housebound in fact due to his service-connected disabilities. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2015). There is no lay evidence of record indicating that the Veteran requires aid and attendance, and the medical evidence of record, including the Veteran's statements at Compensation and Pension examinations, shows that the Veteran is able to attend to daily living activities. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b) (2015). The Veteran has not alleged, and the medical evidence does not show, that any of the Veteran's disabilities have resulted in the loss of use of a limb, loss of use of a creative organ, blindness, or deafness. 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a) (2015). The evidence of record does not raise the issue of entitlement to SMC under any potentially applicable theory, and therefore, the Board will not infer the issue. The issue of entitlement to a TDIU due to the Veteran's service connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT For the entire initial rating period, the symptoms of the Veteran's post-surgical hernia of the abdominal wall include small ventral hernias with weakening of the abdominal wall and indication for a supporting belt; it does not include a large or massive post-surgical ventral hernia that was not well-supported by belt under ordinary circumstances. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a ventral hernia have not been met or more nearly approximated for the entire increased rating period. 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 FINDINGS AND CONCLUSION The Board has reviewed the 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) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations In October 2014 the Board remanded the Veteran's claim for further development, instructing the AOJ to obtain updated VA and private treatment records and to schedule the Veteran for a VA examination to determine the current nature and severity of his post-surgical hernia disability. Additional VA treatment records were added. The Veteran was asked to identify and provide a release for any private treatment records. He did so. The Veteran's private treatment records were obtained and associated with the claims file. The Veteran was also provided with a VA examination in August 2015 to evaluate the current nature and severity of his post-surgical hernia disability. In light of the foregoing, there has been substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2015). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2014) 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The appeal for a higher initial disability rating for the Veteran's service-connected post-surgical hernia of the abdominal wall arises from a disagreement with the initial evaluation following the grant of service connection. 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). Therefore, no further notice is needed under VCAA. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Here, the Veteran's service treatment records, VA medical records, and private treatment records are in the claims file. The Veteran has not identified any other records or evidence that remains outstanding. As noted above, upon remand updated VA and private treatment records were obtained and associated with the Veteran's claims file. Thus, the duty to obtain relevant records on the Veteran's behalf has been satisfied. See 38 C.F.R. § 3.159(c) (2015). With respect to claims for increased initial 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 AOJ provided the Veteran VA examinations in October 2011 and August 2015. The examination reports are thorough and supported by the other evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history. The examination reports also discussed the impact of the disability on the Veteran's activities of daily living. They are, therefore, adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2015). The Veteran was provided the opportunity to present testimony before a Veterans' Law Judge at a video conference hearing. The transcript of the hearing, including the Veteran's testimony, has been associated the Veteran's claims file. The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case, and may proceed to the merits of the Veteran's claim. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2015). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1 (2015), where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's post-surgical hernia is evaluated under Diagnostic Code 7339. See 38 C.F.R. § 4.114. Under those criteria, a 20 percent rating is warranted for a small ventral hernia, postoperative, not well supported by belt under ordinary conditions, or healed ventral hernia; or, postoperative wounds with weakening of the abdominal wall and indication for a supporting belt. A 40 percent rating is warranted for a large ventral hernia, postoperative, not well supported by belt under ordinary conditions; and a 100 percent rating is warranted for a massive ventral hernia, postoperative, 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. The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Competency of evidence, however, 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) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis The Veteran's post-surgical hernia is evaluated as 20 percent disabling throughout the entire initial rating period. The Veteran has appealed this rating stating that he believes the condition is more severe than the 20 percent rating indicates. The Veteran stated in a June 2011 statement in support of claim, that his hernia caused problems with eating and an upset stomach. In September 2011, he elaborated that his hernia aggravated his GERD. He also noted that he had more than one hernia and had to wear support wraps to ease the problems associated with them. At his hearing in August 2014, the Veteran noted that he experiences sharp pains if he bends, twists, or stands too long. He noted these limitation caused difficulty when working as a substitute teacher, and forced him to give up competitive figure skating. In August 2015, he provided a statement in support of claim that stated he had limited movement, could not lift heavy objects, and that he could only wear his support wrap for three hours when working or it caused his GERD to act up. The Veteran has received consistent medical treatment for his post-surgical hernia throughout the record. VA treatment records indicated that the Veteran developed a post-surgical hernia after having a gastrointestinal tumor removed from his abdomen. VA treatment records indicated that in February 2011, that the Veteran was preoccupied by his hernia and was physically unable to exercise after the tumor was removed. The October 2011 VA examination indicated that the Veteran's hernia was of the ventral variety and was 9 centimeters in size. It was well supported by a truss and caused mild weakening. VA treatment records from the same period of time indicated the ventral herniation was classified as small based on a CT scan. He was noted as having abdominal pain from the hernia. In November 2012, the Veteran sought private treatment at Central Florida Surgical Specialists, P.A (CFSS). CFSS noted the Veteran had a 7 centimeter incisional hernia and a small to moderate sized umbilical hernia. Surgery was performed in December 2012 to remove both hernias. In October 2013, CFSS noted a recurrent hernia measuring 4 to 5 centimeters in size and noted the Veteran had a normal range of motion, his strength was intact, and his abdomen was not tender. Surgery to repair the hernia was performed in December 2013. In November 2014, the recurrent incisional hernia was noted again, measuring 4 to 5 centimeters in size. The Veteran was noted has having normal range of motion with his strength grossly intact. Surgery was performed in February 2015 to repair the hernia. In August 2015, the Veteran underwent another VA examination. At that time, there were no reported abdominal bulges. He reported needle prickling, pressure, and tightness following activities such as walking, lifting, and twisting. The examiner noted that no hernia was present, but the Veteran was to avoid lifting greater than 20 pounds, prolonged lifting, and prolonged bending and twisting motions. Throughout the initial rating period the Veteran's symptoms and the medical evidence are consistent with the disability rating level of 20 percent for a ventral, postoperative, hernia. Diagnostic Code 7339 (2015). The largest hernia was noted as being was 9 centimeters in size, and that was classified as small in the treatment records. The recurrent nature and discomfort of the Veteran's hernia indicates the prescribed wraps did not support the hernia under ordinary conditions. Weakening was noted at times; however, the Veteran's hernia was always noted as surgically reducible. The most current records indicated that the ventral hernia was repaired, but some physical limitations remain. Neither the Veteran's statements nor the medical records indicate the Veteran experienced a large or massive hernia. The condition remained operable, and indeed was surgically repaired on multiple occasions. Therefore, the Veteran's post-surgical hernia was not consistent with the higher rating criteria for a 40 or 100 percent disability rating. Extra-Schedular Consideration Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular 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 Director, Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. A Veteran may also be awarded an extra-schedular 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. Johnson v. McDonald, 762 F.3d 1362 (2014) (the Court of Appeals for the Federal Circuit explained that 38 C.F.R. § 3.321 (2015) fills a gap when the overall disability picture is less than total unemployability, but where the collective impact of disabilities is not adequately represented.). With regard to the applicability of an extra-schedular rating, the Board notes that the Veteran's post-surgical hernia was manifested with pain, limitation in bending and twisting, and weakened abdominal strength. These symptoms and manifestations and the resulting impairment are contemplated by the rating criteria in Diagnostic Code 7339. The Board notes the Veteran reported the support wraps caused him to have an upset stomach and limited what he ate, but he later elaborated that this was due to his GERD. The Veteran's GERD is a service-connected disability. These symptoms were contemplated in that disability evaluation. The Veteran has indicated the sum of the symptoms he experiences from his multiple service-connected disabilities warrants a finding of unemployability. This indication does not support a finding that the Veteran experiences symptoms from his disabilities, combined or otherwise, that were not contemplated by the rating criteria. Instead it raises the issue of a TDIU claim, which is discussed in the Remand portion of this decision. Moreover, the combined rating for the Veteran's service-connected disabilities is 100 percent, which reflects the Veteran's claim that the sum of the symptoms renders him unemployable. Therefore, referral for consideration of an extraschedular evaluation is not warranted. ORDER For the entire initial rating period, an increased rating in excess of 20 percent for the Veteran's post-surgical hernia of the abdominal wall is denied. REMAND As noted in the introduction, the Veteran's statements about his unemployability in his September 2011 correspondence, in conjunction with his express claim for an increased initial rating raise the issue of TDIU. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. To this end, the Board notes that the Court of Appeals for Veterans Claims (Court) has indicated that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any single disability or combination of disabilities establishes entitlement to SMC under 38 U.S.C.A. § 1114. See Bradley, supra, (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). As noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. Id.; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds a separate disability) supports a TDIU rating independent of the other 100 percent disability rating). Subsection 1114(s) requires that a disabled veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for SMC provided by that statute. Under the law, subsection 1114(s) benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated as 100 percent disabling. See 38 C.F.R. § 3.350(i) (2015) (requiring service-connected disability rated as total and additional service-connected disability or disabilities independently ratable at 60 percent or more, or being permanently housebound due to such service-connected disability or disabilities). In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, VA must determine whether the Veteran is eligible for a TDIU based solely on his hernia, or other service-connected disabilities considered individually. If so, then while not rated as 100 percent disabling, for SMC purposes, that disability satisfies the requirement of a "service-connected disability rated as total." See Buie, 24 Vet. App. at 251; Bradley, 22 Vet. App. at 293 (2008). The record is not sufficient, however, to make such a determination. The most recent information obtained regarding the Veteran's employability was received in October 2010. The Veteran's testimony in August 2014, indicated he has made additional attempts at work since October 2010, including working as a substitute teacher. Thus, additional development is required to determine if the Veteran is entitled to TDIU based on any single service-connected disability. Accordingly, the case is REMANDED for the following actions: 1. Undertake any development deemed necessary to adjudicate the issue of entitlement to TDIU based on any single one the Veteran's service-connected disabilities. 2. Thereafter, adjudicate the issue of TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs