Citation Nr: 1634161 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 04-13 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for an umbilical hernia. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in relevant part, granted service connection for an umbilical hernia and assigned a 0 percent rating effective May 29, 2002. The claims file was subsequently transferred to the RO in Columbia, South Carolina. Historically, the Board denied the above-listed claim in a September 2006 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court remanded the matter back to the Board in October 2007 for action consistent with the terms of the JMR. The Board then remanded the claim for additional development in March 2008. After completion of the requested development, the Board again denied the claim in May 2010. The Veteran again appealed to the Court, and pursuant to another JMR, the matter was remanded back to the Board in November 2010. The Board again remanded the claim in August 2011. After completion of the requested development, the Board denied the claim in September 2013. However, pursuant to a motion filed by the Veteran's then-representative, the Board vacated that denial in February 2014, as the record contained evidence that was not reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance. The Board remanded the matter to correct this error, and now it is once again before the Board for review. FINDING OF FACT During the appeal period, the Veteran's umbilical hernia has not been manifested by a small hernia not well supported by a belt under ordinary conditions, or by weakening of the abdominal wall and indication for a supporting belt. CONCLUSION OF LAW The criteria for a compensable rating for an umbilical hernia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7339 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating A. Applicable Laws 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 (West 2014); 38 C.F.R. § 4.1 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's umbilical hernia is currently assigned a 0 percent rating under Diagnostic Code (DC) 7339. Notably, he was also assigned a temporary 100 percent rating for his condition from February 24, 2009, through March 31, 2009, under the provisions of 38 C.F.R. § 4.30. In addition, he was separately service-connected for a painful scar associated with his hernia repair surgery. That condition is not on appeal, and therefore manifestations associated with it will not be discussed. DC 7339 states that 0 percent rating is warranted for healed postoperative wounds for which there is no disability and for which 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. A 40 percent rating is warranted for a large postoperative ventral hernia which is not well supported by belt under ordinary conditions. 38 C.F.R. § 4.114, Diagnostic Code 7339. The October 2007 JMR in this case indicated that the Board did not discuss whether DC 7338, which addresses inguinal hernias, was applicable to this case. An umbilical hernia is a type of abdominal hernia in which part of the intestine protrudes at the umbilicus and is covered with skin and subcutaneous tissue. See Dorland's Illustrated Medical Dictionary 862 (31st ed. 2007). A ventral hernia is an abdominal hernia. Id. An inguinal hernia is a herniation of the loop of intestine into the inguinal canal. Id. at 861. "Inguinal" pertains to the groin. Id. at 953. The area where the Veteran's hernia was surgically repaired is anatomically located five centimeters inferior to the umbilicus. See August 2009 VA Examination. There is no indication that his service-connected condition implicates the inguinal canal, and therefore DC 7338 is not applicable to this case. B. Evidence VA treatment records dated June 2002 show the Veteran reported pain related to his ventral hernia. An October 2002 VA examination revealed a 2 cm. umbilical hernia which was nontender to palpation. The examiner diagnosed an asymptomatic hernia, and stated that the symptoms reported by the Veteran during the examination (regurgitation and vomiting) were more consistent with gastroesophageal reflux disease and not his umbilical hernia. VA treatment records for the period from 2002 to late 2008 are otherwise negative for any significant complaints or documented symptoms associated with the Veteran's umbilical hernia. Indeed, during a June 2012 VA examination, the Veteran reported that he was diagnosed with an umbilical hernia in 1982 but was asymptomatic and did not seek further treatment until 2009. In December 2008, the Veteran reported that his hernia had started irritating him recently. Treatment records from January 2009 show he reported a one and a half month history of pain which began when he contracted a cold and started coughing. He felt a pain in his umbilical region and noticed a bulge. The bulge protruded when he coughed, but self-reduced once he stopped. In February 2009, he underwent surgical repair for his hernia. In March 2009, the Veteran was seen for a complaint of a protruding hernia. However, he was diagnosed with a wound seroma, which was a collection of fluid. He did not have a hernia. Additional VA records from April 2009 noted this seroma, but there were no masses and no recurrence of the hernia. A VA examination from August 2009 showed the Veteran reported that he could still feel the hernia, but that it was much improved. He reported that he used a back brace for his back and his hernia. On examination, no hernia was present, and the treating physician diagnosed status post reduction of an umbilical hernia with no recurrence. In December 2009, the Veteran reported persistent pain and swelling in the area of his umbilical hernia. However, a January 2010 ultrasound showed no recurrent hernia. A February 2010 CT scan showed swirling and narrowing of the sigmoid colon, which were assessed as possibly related to postsurgical adhesions or an internal hernia. However, an examination in March 2010 revealed no hernia to be present, and the Veteran reported pain around the umbilicus only when he drank alcohol. CT scans in March 2011 and July 2011 did not show any findings similar to those documented in February 2010. During a July 2012 VA examination, no hernia was present. The examiner noted only a healed postoperative ventral hernia repair, with no indication for a supporting belt. The examiner also noted that while the February 2010 CT scan showed a possible internal hernia, subsequent scans in March 2011 and July 2011 showed no such findings. This suggested that the 2010 findings were transient bowel contractions and not related to either an internal hernia or adhesions, neither of which would resolve spontaneously. A February 2013 letter from the Veteran's primary care provider stated that the February 2010 CT scan showed a possible internal hernia, and that it was at least as likely as not that the Veteran had postoperative changes at the umbilical site with weakening of the abdominal wall, and there was indication for a supportive belt which he wore on a regular basis. Finally, the Veteran underwent a VA examination in August 2015. He reported that, since his surgery, he felt something "wiggly going down" when he drinks something hot. Otherwise, he denied any pain or other complication. On examination, no hernia was detected, and the examiner noted only a healed postoperative ventral hernia repair. There was no indication for a supporting belt. C. Analysis Based on the evidence, the Board finds that a compensable rating for the Veteran's umbilical hernia is not warranted. For the period from 2002 through the end of 2008, the Veteran's condition was essentially asymptomatic, with only a report of pain in June 2002. The October 2002 VA examination documented an asymptomatic hernia, and the Veteran himself later reported that his condition had been asymptomatic from the time he was diagnosed until shortly before his surgery. The condition did become symptomatic in December 2008. He subsequently underwent surgical repair in February 2009 and received a temporary 100 percent rating for convalescence through the end of March 2009. Subsequent findings in April 2009, August 2009, January 2010, March 2010, July 2012, and August 2015, showed no recurrent hernia to be present. The VA examiners from July 2012 and August 2015 specifically diagnosed a healed postoperative ventral hernia repair, consistent with the currently assigned 0 percent rating. The Board has considered the February 2013 statement from the Veteran's primary care provider. However, her statement, that the February 2010 CT scan showed a possible internal hernia, did not acknowledge the subsequent scans, which showed no such findings, or the July 2012 VA examiner's assessment that the 2010 findings were not indicative of an internal hernia in light of the subsequent tests. Moreover, her statement that the Veteran had weakening of the abdominal wall, and that a supportive belt was indicated, is not borne out by the record. No such weakening was ever documented during the numerous examinations of the Veteran's condition, either before or after his surgery. The August 2015 VA examination, conducted after the February 2013 statement from his primary care provider, also documented no such findings. In addition, the Veteran was never prescribed a belt, and VA examiners before and after February 2013 stated that no belt was indicated. The Board has also considered the Veteran's statement that he used a back brace to also support his hernia. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the question of whether a belt is medically necessary to support the Veteran's umbilical hernia falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, his statement carries little probative value, particularly in light of the multiple instances which documented that no hernia was present, and the VA examiners' assessments that no belt was required. The October 2007 JMR in this case indicated that the Board did not adequately explain in its September 2006 denial why a 20 percent rating for a healed ventral hernia was not warranted. The Board notes that the construction of the criteria for the 20 percent rating does not include a comma between "healed ventral hernia" and "postoperative wounds." Thus, the phrase that follows, "with weakening of abdominal wall and indication for a supporting belt," applies to both "healed ventral hernia" and "postoperative wounds." The result is that, in order to obtain a 20 percent rating, a healed ventral hernia with weakening of abdominal wall and indication for a supporting belt must be demonstrated. Alternatively, even if a "healed ventral hernia," alone, is sufficient to warrant a 20 percent rating, such a rating is not appropriate in this case, as the evidence clearly documents that no hernia was present subsequent to the Veteran's 2009 surgery. For the years prior to his surgery, his condition was asymptomatic, consistent with the 0 percent rating, which contemplates "no disability." D. Extraschedular Consideration Finally, the Board has also considered whether referral for consideration of an "extraschedular rating" is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected umbilical hernia that would render the schedular criteria inadequate. As discussed above, symptoms alleged to be associated with his condition (indication for a belt, weakening of the abdominal wall) are contemplated in the assigned schedular ratings. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; rather, he has merely disagreed with the assigned disability rating for his level of impairment. In other words, he does not have any symptoms from his service-connected umbilical hernia that are unusual or different from those contemplated by the schedular criteria. The Veteran has also not alleged or indicated 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. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. II. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). Here, the underlying service connection claim has been granted and an initial disability rating has been assigned, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and Social Security Administration (SSA) records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's umbilical hernia condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Notably, the November 2010 JMR in this case indicated that, although the claims file was available to the August 2009 VA examiner, it was not clear that the examiner had actually reviewed it. This deficiency has been corrected, as both the July 2012 and August 2015 VA examiners specifically indicated that they reviewed the claims file as part of their reports. ORDER An initial compensable rating for an umbilical hernia is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs