Citation Nr: 1800330 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-10 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating higher than 20 percent for postoperative residuals of epigastric/umbilical hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to June 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Board denied an increased rating for scars secondary to postoperative residuals of epigastric/umbilical hernia and remanded the issue of and increased rating for postoperative residuals of epigastric/umbilical hernia for further development. FINDING OF FACT The Veteran's for postoperative residuals of epigastric/umbilical hernia include pain, tenderness to palpation, an indication for a supporting belt, and four associated painful scars. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for postoperative residuals of epigastric/umbilical hernia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7339 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating The Veteran was originally granted service connection for postoperative residuals of epigastric (umbilical) hernia in an October 1991 rating decision. At that time, this disability was rated noncompensable (0 percent) effective August 21, 1991. In a January 1992 rating decision, the Veteran was awarded a temporary total rating from August 21, 1991, to October 1, 1991, for surgery. The Veteran did not appeal this rating decision or submit additional material evidence within one year of its issuance. Thus, the January 1992 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; cf. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (b). In a June 2007 rating decision, the Veteran was again awarded a temporary total rating based on surgical or other treatment necessitating convalescence. This temporary total rating was effective June 4, 2007, to August 1, 2007. In a March 2008 rating decision, the Veteran was again awarded a temporary total rating based on surgical or other treatment necessitating convalescence. This temporary total rating was effective August 1, 2007, to October 1, 2007. A 20 percent rating was assigned effective October 1, 2007. Again, the Veteran did not appeal this rating decision or submit additional material evidence within one year of its issuance. Thus, the March 2008 rating decision became final. See id. In a March 2009 rating decision, the RO proposed a reduction of the Veteran's rating for postoperative residuals of epigastric/umbilical hernia to 0 percent. In a May 2009 rating decision, the Veteran's rating for postoperative residuals of epigastric/umbilical hernia was decreased to 0 percent effective August 1, 2009. Again, the Veteran did not appeal this rating decision or submit additional material evidence within one year of its issuance. Thus, the May 2009 rating decision became final. See id. The Veteran filed his current claim for an increased rating on March 15, 2011. In an October 2011 rating decision, the Veteran's rating for postoperative residuals of epigastric/umbilical hernia was increased to 20 percent effective March 15, 2011. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's postoperative residuals of epigastric/umbilical hernia (hernia residuals) are currently rated under Diagnostic Code (DC) 7339. DC 7339 provides ratings for postoperative ventral hernia. Healed postoperative wounds of ventral hernia, with no disability, belt not indicated, is rated noncompensably (0 percent) disabling. Small postoperative ventral hernia, 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, is rated 20 percent disabling. Large postoperative ventral hernia, not well supported by belt under ordinary conditions, is rated 40 percent disabling. Massive persistent postoperative ventral hernia, 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, is rated 100 percent disabling. 38 C.F.R. § 4.114. In his March 2011 claim, The Veteran reported that he was in pain every day in his groin area. In June 2011 the Veteran underwent an examination in conjunction with this claim. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore this examination is adequate for VA purposes. At that time, the Veteran reported symptoms of constipation, tingling, numbness, abdominal pain, and constant pain in the right testicle. He also reported erectile dysfunction with premature ejaculation. He stated that he had overall functional impairment in that he could not play sports anymore and had a lot of pain with lifting. Standing for a long time caused pain and he was unable to ride for any prolonged period. Physical examination found the Veteran's abdomen tender to palpation. This tenderness was over the umbilical and right inguinal area. Palpation of umbilical area was slightly harder consistent with mesh. There were no findings of hepatomegaly, distension of the superficial veins, striae on the abdominal wall, flank tenderness to palpation, an ostomy ascites, splenomegaly, or aortic aneurysm. There was no inguinal hernia noted on examination. No diastasis recti were present. There was no ventral hernia present. The examination did not reveal a femoral hernia. There were four scars on the anterior side of the trunk surrounding the umbilicus and right inguinal. These scars measured 9.5 cm by .2 cm, 3.5 cm by .2cm, 2 cm by .2 cm, and 10 cm by .2 cm. All four were painful on examination. These were superficial scars without underlying tissue damage. There was no skin breakdown, inflammation, edema, or keloid formation. These scars were not disfiguring. They did not limit the Veteran's motion or result in limitation of function. There was impaired pinprick sensation around these scars. This disability did not affect the Veteran's usual occupation. It did limit his ability to lift to fifteen pounds. He was unable to push a lawnmower. He was only able to stand for thirty minutes prior to abdominal pain. In a February 2014 statement, the Veteran's sister reported that he was taking medication for circulation, nerve damage, and muscle spasms and that the prison surgeon had recommended further surgery. Medical records from the correctional facility note that the Veteran has tenderness to palpation on the right side of his abdomen. In April 2016 the Veteran underwent an examination in conjunction with this claim. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore this examination is adequate for VA purposes. At that time he reported pain in his abdominal wall with physical activities. His pain radiated down his right testicle. He had used support belt and truss in the past with good results, but was not allowed to use them since being incarcerated in 2011. Physical examination found healed postoperative ventral hernia repair and no current inguinal or ventral hernia detected. There was an indication for a supporting belt, but it was not used. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to this disability. The Veteran had associated scars. The functional impact of this disability was that the Veteran was unable to lift, push, or pull more than fifteen pounds. He needed to wear a supporting belt or truss. Additionally, in April 2016 the Veteran underwent a scars examination. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore this examination is adequate for VA purposes. Physical examination found four scars related to the surgical repair of the umbilical and right inguinal hernia. None of these scars were on his head, face, or neck. All four scars were painful and mildly tender to palpation. None of these scars were unstable, deep, or due to burns. These scars measured 9.5 cm by .2 cm, 3.5 cm by .2cm, 2 cm by .2 cm, and 10 cm by .2 cm. The approximate total area of the scars was 5 cm2. None of these scars resulted in limitation of function. The Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms associated with these scars. These scars did not impact his ability to work. Based on the above, the Veteran's hernia residuals include pain, tenderness to palpation, and associated scars. There was an indication for a supporting belt, but it was not used as it was prohibited by the correctional facility. This is consistent with the current 20 percent rating. See 38 C.F.R. § 4.114, DC 7339. A higher rating would require at least a large postoperative hernia. See id. Although the Veteran's incarceration has prevented him from using a belt of truss to treat his symptoms, this is not akin to a finding of a large postoperative ventral hernia, not well supported by belt under ordinary conditions. He is not shown at any time to have a current, postoperative hernia as required for a higher rating. Thus, the current 20 percent rating is appropriate for the entire appeals period. With regard to his scars, the Veteran is currently in receipt of a separate 20 percent rating for his associated surgical scars. As noted in the November 2015 Board decision, this rating reflects four painful scars without skin breakdown, underlying tissue damage, inflammation, edema, or keloid formation. The total area affected is less than six square inches. Since these scars are not of the head, face, or neck, are not unstable, and do not affect an area greater than six square inches, compensable ratings are not available under DC 7800, 7801, or 7802. See 38 C.F.R. § 4.118. As only four painful scars were found, a rating higher than 20 percent is unavailable under DC 7804. See id. Thus, the evidence supports the existing rating for scars and the Board leaves this rating undisturbed. Therefore, the Board finds that the preponderance of the evidence is against a higher schedular rating for postoperative residuals of epigastric/umbilical hernia. Hence the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of (list the disabilities for which the decision is adjudicating a ratings issue), are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. ORDER A rating higher than 20 percent for postoperative residuals of epigastric/umbilical hernia is denied. ____________________________________________ JAMES G. RIENHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs