Citation Nr: 1745895 Decision Date: 10/16/17 Archive Date: 10/31/17 DOCKET NO. 10-39 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial compensable disability rating for a ventral hernia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to September 2008, to include service in the Southwest Asia theater of operations from November 2004 to September 2005. In April 2015, the Board remanded the case for further development. It has now returned to the Board for appellate review. VETERAN'S CONTENTIONS As provided in his January 2010 Notice of Disagreement (NOD), the Veteran contends that the currently-assigned noncompensable disability rating does not accurately reflect the severity of his ventral hernia. Specifically, the Veteran asserts that his ventral hernia causes discomfort and limited his range of motion. Additionally, the Veteran states that his hernia has had negative impacts on prospective employment options. FACTUAL FINDINGS 1. The evidence of record fails to demonstrate that the Veteran had surgery for his ventral hernia. 2. The evidence of record demonstrates that the Veteran's ventral hernia is best categorized as small and does not require the use of a supporting belt. LEGAL CONCLUSION The criteria for the assignment of an initial compensable disability rating for a service-connected ventral hernia have not been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7339 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C.S. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. Where, as here, a Veteran expresses dissatisfaction with the assignment of an initial rating following an award of service connection for a disability, separate, or "staged," ratings can be assigned. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Currently, the Veteran's ventral hernia is rated as noncompensable under 38 C.F.R. § 4.114, Diagnostic Code 7339. The Board finds this diagnostic code to be the most appropriate as it is designated by law to rate ventral hernias. Under Diagnostic Code 7339, a noncompensable disability rating is warranted where postoperative wounds have healed with no disability and use of a supporting belt is not indicated. A 20 percent rating is warranted for a ventral hernia that is small and not well supported by a belt under ordinary conditions; or for a healed ventral hernia or for post-operative wounds with weakening of the abdominal wall and indication for a supporting belt. A 40 percent rating is warranted for a ventral hernia that is large and not supported by a belt under ordinary conditions. Lastly, a 100 percent rating is assigned for a ventral hernia that is categorized as massive and persistent, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall so as to be inoperable. As indicated above in the Legal Conclusions section, after carefully reviewing the evidence of record, the Board finds that in initial compensable disability rating is not warranted. Accordingly, the Board will deny the Veteran's increased rating claim. Turning to the evidence of record, the Veteran was afforded three VA examinations in relation to his hernia throughout the course of the appeal. During an August 2008 general medical examination, the Veteran complained of occasional twinges of right-sided mid to lower abdominal pain. The examiner did not find any mass during a physical examination. The examination report lists a diagnosis of ventral hernia per history and records. Next, during a December 2010 VA examination, the Veteran described frequent episodes of right-sided abdominal pain that lasted a few seconds. A physical examination of the Veteran revealed a ventral hernia on the right side of the middle to upper abdomen, with mild protrusion when straining. The diameter of the ventral hernia was 0.7 centimeters by 0.6 centimeters. The examiner commented that the ventral hernia was readily reducible and that surgery could be performed, but it was not necessary. The examiner classified the ventral hernia as small and noted that there was no diastasis of the Veteran's recti muscles. During this examination, the examiner also recorded the presence of an umbilical hernia. Lastly, in May 2016, the Veteran was provided another VA examination in accordance with the Board's April 2015 remand. During this examination, the Veteran stated that he tried to avoid lifting more than 20 pounds to prevent aggravating the hernia and that he did not use an abdominal belt. Despite this statement, the Veteran said that when he did have to lift items heavier than 20 pounds-or when doing yard work-he tried to wear a vest with an abdominal belt for his hernia and low back pain. After examining the Veteran, the examiner diagnosed the Veteran with a small ventral hernia. The examiner commented that there was no indication for use of a supporting belt and that the Veteran did not have surgery. From the disability picture created by the VA examination reports of record, the assignment of an initial compensable disability rating is not warranted as (1) the Veteran does not require the use of a supporting belt, and (2) he did not have surgery for a ventral hernia. The Board finds this disability picture to be supported by the other evidence of record. Specifically, in a March 2008 service treatment record (STR), a clinician maintained the Veteran's active ventral hernia diagnosis. The Veteran stated that he had more abdominal discomfort and occasional pain with any straining or when made to lie on his stomach for prolonged periods of time. At this time, the Board acknowledges that the April 2015 remand instructions requested that the VA examination obtained on remand clarify as to whether the Veteran had either (1) an umbilical hernia in addition to a ventral hernia, or (2) only one hernia-implying that clinicians had used the terms umbilical hernia and ventral hernia interchangeably to describe the same disability. In making this determination, the examiner on remand was asked to review and comment upon an April 2007 ultrasound report. In the May 2016 VA examination report, the examiner indicated that she could not locate the 2007 report referenced in the April 2015 Board remand instructions. Nevertheless, the May 2016 VA examiner diagnosed the Veteran with only one hernia-a ventral hernia. The Board finds the May 2016 VA examination report adequate for adjudicative purposes as the examiner complied with the spirit of the April 2015 Board remand instructions by identifying that only one hernia was present during the examination. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Further, even when affording the Veteran the benefit of the doubt by attributing symptoms associated with a disability labeled as an umbilical hernia to his currently service-connected ventral hernia, the Board finds that the record still does not present a disability picture warranting the assignment of an initial compensable rating. 38 C.F.R. § 4.3. Specifically, in March 2009, Dr. Parker, a general surgeon at the 121st General Hospital, noted that the Veteran complained of intermittent pain in his right lower quadrant. Dr. Parker diagnosed the Veteran with an umbilical hernia and recommended surgery, but the Veteran declined. Dr. Parker did not comment on or recommend the use of a supportive belt. Likewise, in September 2014, Dr. Wilson from General Surgery Associates, P.C. evaluated the Veteran and noted that the Veteran's umbilical hernia had recently become larger and mildly tender. Dr. Wilson recommended elective surgical repair. However, the treatment record noted that the Veteran was skeptical about having surgery as the hernia was "minimally symptomatic." Similar to Dr. Parker, Dr. Wilson did not comment on or recommend the use of a supportive belt. Thus, from the above-referenced treatment records, the Board finds that, even when considering the evidence of record which discussing an umbilical hernia, the Veteran's service-connected small ventral hernia still does not warrant the assignment of an initial compensable rating as the Veteran did not have surgery for it and does not require the use a supportive belt. The Board in this regard acknowledges that the Veteran has reported that on occasion he uses a supporting belt, but emphasizes that the use of such belt has been determined to be medically unnecessary according to examining clinicians. Accordingly, the Board will deny the Veteran's increased rating claim as the preponderance of the evidence is against it. See 38 U.S.C.S. § 5107(b). ORDER An initial compensable disability rating for a ventral hernia is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs