Citation Nr: 1806204 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 11-33 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased (compensable) rating for a ventral incisional hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on verified active duty in the Army from February 1996 to June 1996 and from March 2000 to July 2004, including service in the Southwest Asia theater of operations from December 2000 from April 2001. He also had additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that assigned a temporary total rating (38 C.F.R. § 4.30) based on convalescence for the Veteran's service-connected ventral incisional hernia for the period from March 9, 2010, to May 31, 2010. By this decision, the RO also assigned a noncompensable rating for the Veteran's service-connected ventral incisional hernia from June 1, 2010. A February 2011 RO decision continued a noncompensable rating for the Veteran's service-connected ventral incisional hernia. The case was later transferred to the Detroit, Michigan Regional Office (RO). In September 2016, the Board remanded this appeal for further development. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the evidence reveals that the Veteran is currently employed, and that the issue of entitlement to a TDIU is not before the Board at this time. FINDING OF FACT Throughout the appeal period, the Veteran's ventral incisional hernia has been manifested by a small post-operative ventral hernia, not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wounds with weakening of the abdominal wall and an indication for a supporting belt. CONCLUSION OF LAW The criteria for a 20 percent rating for a ventral incisional hernia have been met. 38 U.S.C.A §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7339 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2017). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14; 38 C.F.R. § 4.113 (2017). Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The RO has rated the Veteran's ventral incisional hernia under Diagnostic Code 7339, which pertains to a postoperative ventral hernia. Under Diagnostic 7339, a noncompensable rating is assigned for a healed, post-operative wound with no disability, belt not indicated. A 20 percent rating is assigned for a small post-operative ventral hernia, not well supported by a belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for a large hernia, not well supported by a belt under ordinary conditions. A 100 percent rating is assigned for massive, persistent, 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. 38 C.F.R. § 4.114, Code 7339. An August 2010 RO decision assigned a temporary total rating (38 C.F.R. § 4.30) based on convalescence for the Veteran's service-connected ventral incisional hernia for the period from March 9, 2010, to May 31, 2010. By this decision, the RO also assigned a noncompensable rating for the Veteran's service-connected ventral incisional hernia from June 1, 2010. As the Veteran was assigned a 100 percent rating for the period from March 9, 2010, to May 31, 2010, the Board need not address the rating for that period. The Veteran contends that his ventral incisional hernia is worse than contemplated by his currently assigned disability rating and that a higher rating is therefore warranted for that service-connected disability. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Private treatment records dated from March 2010 to April 2010 show that the Veteran was treated for his service-connected ventral incisional hernia. For example, a March 2010 discharge summary from the University of Michigan Hospital and Health Centers indicates that the Veteran underwent a recurrent, incarcerated incisional hernia repair, with a mesh explant, and a mesh implant (Strattice), as well as lysis of peritoneal adhesions. It was noted that the Veteran also underwent an exploratory laparotomy with lysis of adhesions six days later. The discharge summary relates a principle diagnosis of a recurrent ventral incisional hernia, and a secondary diagnosis of extensive peritoneal abdominal adhesions. A May 2010 VA digestive conditions examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he had an emergency appendectomy during his period of service in 2003 and that, following the surgery, he had an incisional hernia. He indicated that he had undergone several surgeries since that time with the most recent surgery in March 2010. The Veteran stated that since his first surgery, he had suffered chronic problems with diarrhea or constipation. He also maintained that he had been wearing an abdominal binder following the initial surgery in 2003. He maintained that his symptoms had progressively worsened. The examiner reported that there was no history of trauma to the Veteran's digestive system and no history of a neoplasm. The examiner indicated that the Veteran underwent a tension free repair, using mesh, of a ventral hernia in September 2004 and that the hernia recurred. It was noted that the Veteran underwent an additional tension free ventral hernia repair in March 2006 and that the hernia recurred, as well as a further tension free ventral hernia repair using mesh in October 2006, and that the hernia also recurred following that surgery. The examiner indicated that the Veteran underwent a traditional open repair of a ventral hernia on two occasions in March 2010. The examiner specifically stated that, in March 2010, the Veteran had a recurrent, incarcerated, ventral incisional hernia repair with a mesh implant, and lysis of peritoneal adhesions with the previous mesh removed. It was noted that five days later, he underwent a laparotomy for a bowel obstruction. The examiner indicated that there was history of an injury or wound related to a hernia and that such occurred in April 2003. The examiner reported that currently a hernia was not present. The examiner stated that the Veteran had a pink, surgical scar in the midline from the most recent surgery and that he was wearing an abdominal binder. The diagnosis was multiple surgeries for an incarcerated ventral hernia, with recent surgeries times two in March 2010. The examiner stated that the Veteran had residual symptoms of abdominal pain, and diarrhea alternating with constipation. The examiner reported that the Veteran was currently employed full-time and that he had worked at his current employment for one to two years. It was noted that the Veteran had lost eleven weeks of work in the last twelve month period, and that the causes of his time lost from work were abdominal surgery for a hernia repair and a bowel obstruction, as well as medical appointments. The examiner indicated that the Veteran's ventral hernia had significant effects on his occupational activities. The examiner stated that the Veteran had difficulty with bending for a prolonged period. The examiner maintained that the effects of the Veteran's ventral hernia on his usual daily activities ranged from none to moderate. It was noted that the Veteran could not pick up his children and that the only exercise he could perform was walking. The examiner also indicated that bending to tie shoe laces and/or prolonged sitting was difficult for the Veteran due to the multiple abdominal surgeries. A May 2010 VA intestines examination report includes a notation that the Veteran's claims file was reviewed. The examination report essentially refers to the Veteran's service-connected irritable bowel syndrome. A May 2010 VA stomach, duodenum, and peritoneal adhesions examination report includes a notation that the Veteran's claims file was reviewed. The examiner reported that there was a history of hospitalization or surgery. The examiner stated that there was no history of trauma and no history of neoplasms. It was noted that there were no periods of incapacitation due to stomach or duodenal disease. The examiner indicated that the Veteran had episodes of abdominal colic, nausea, vomiting, and abdominal distention. The examiner stated that there had been no episodes of hematemesis or melena. The examiner indicated that the Veteran had episodes of nausea weekly, as well as vomiting of less than weekly. It was noted that the Veteran had episodic diarrhea four to six times daily with more than twelve attacks per week over a two day period. The examiner related that the Veteran had lost weight and that there were no signs of significant weight loss or malnutrition. It was noted that the Veteran did not have anemia. The examiner stated that the Veteran did have abdominal tenderness. The diagnosis was multiple abdominal surgeries for an incarcerated ventral hernia and peritoneal adhesions. The examiner reported that the Veteran was currently employed full-time and that he had worked at his current employment for one to two years. It was noted that the Veteran had lost eleven weeks of work in the last twelve month period and that the cause of his time lost from work was abdominal surgery for a hernia repair and a bowel obstruction, as well as medical appointments. The examiner reported that the Veteran's ventral hernia had significant effects on his usual occupation with increased absenteeism. The examiner maintained that the effects of the Veteran's ventral hernia on his usual daily activities ranged from none to moderate. It was noted that the Veteran could not pick up his children and that he only exercise he could perform was walking. The examiner also indicated that bending to tie shoe laces and/or prolonged sitting was difficult for the Veteran due to prolonged surgeries. Private treatment records dated from July 2010 to February 2017 show that the Veteran was treated for multiple disorders, including his ventral incisional hernia. For example, a June 2011 statement from J. D. Copeland, M.D., indicates that the Veteran was currently under his care. Dr. Copeland stated that the Veteran had a history of an incisional hernia with weakening of the abdominal wall and the need for a supporting belt. Dr. Copeland listed multiple surgeries that the Veteran had undergone. Dr. Copeland stated that the Veteran had complications from his surgeries that included problems with his bowels consisting of cramping and intermittent diarrhea verses constipation, as well as the constant need to wear a binder due to abdominal weakness. It was noted that the Veteran also had a nighttime cough which caused him to wear an abdominal binder and that he had chronic pain as well. Dr. Copeland further indicated that the Veteran had limited mobility and that he was limited in the weight he could lift due to a high risk of recurrent hernias. An October 2012 statement from Dr. Copeland notes that the Veteran had undergone six abdominal surgeries from a service-connected appendectomy, with an ilioectomy, as well as a small bowel obstruction, and post-surgical incisional hernias. Dr. Copeland stated that due to those surgeries, the Veteran experienced loss of sensation because of multiple incisions of the midline to the pubic area. Dr. Copeland indicated that the Veteran was required to wear a supportive belt and binder because of the abdominal strain, pain due to scars, and a severely weakened abdominal wall. Dr. Copeland also reported that since the Veteran's multiple surgeries, it was necessary for him to wear a double abdominal binder to combat a cough caused by chronic sinusitis and allergic rhinitis. A February 2017 statement from Dr. Copeland indicates that the Veteran had undergone six abdominal surgeries for a service-connected appendectomy, with ileotomy, as well as a small bowel obstruction, and post-surgical ventral incisional hernias. Dr. Copeland reported that due to those surgeries, the Veteran experienced loss of sensation because of multiple incisions of the midline to the pubic area. Dr. Copeland also stated that the Veteran experienced severe anxiety over performing sex due to a current hernia sac on the right side and the possibility of recurrent ventral incisional hernias due to his weakened abdominal wall. Dr. Copeland maintained that the Veteran was required to wear a supportive belt and binder because of abdominal strain, pain due to scars, and a severely weakened abdominal wall. It was also noted that it was necessary that the Veteran wear a double abdominal binder since his multiple surgeries to combat his sinusitis and allergic rhinitis, with a cough. A February 2017 VA hernias examination report includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he underwent seven major surgeries and that he had abdominal weakness. He stated that he was also told by his surgeon that he had a large mass of scar tissue and that such was inoperable. The Veteran indicated that he wore a binder every day and that he had so much weakness that he could not get out of bed. He maintained that he suffered chronic abdominal pain with episodes of diarrhea. The Veteran reported that his last hernia was in 2010. The examiner reported that an October 2012 statement from Dr. Copeland notes that the Veteran was required to wear a supportive belt and binder because of abdominal strain, pain due to scars, and a severely weakened abdominal wall. The examiner also indicated that a June 2016 VA treatment report includes an assessment of an incisional hernia, supportive care, following surgery in a non-VA setting, and that abdominal binders would be ordered to help the Veteran with day to day activity. The examiner reported that the Veteran underwent surgeries, including an appendectomy, with a hemi-colectomy, in 2004; and a small bowel obstruction in 2004; a ventral hernia repair in September 2004; a ventral hernia repair in March 2006; a ventral hernia repair in October 2006; a recurrent incarcerated incisional hernia repair with mesh explant, mesh implant, and lysis of peritoneal adhesions, in March 2010; and an acute bowel obstruction in March 2010. The examiner stated that a February 2017 ultrasound, as to the Veteran's abdomen, relates, as to an impression, that no herniation of the bowel was identified in the anterior abdominal wall in the indicated area of pain and tenderness. It was noted that the Veteran was unable to tolerate compression which limited the assessment and that if there was a clinical concern for a recurrent hernia, a computed tomography scan might be helpful. The examiner also indicated that the same ultrasound shows a large mass noted on the right lower abdominal wall, and that it was negative for a hernia. The examiner reported that there was an indication for a supportive belt and that the Veteran's ventral incisional hernia could be well supported by a truss or belt. The examiner stated that the Veteran did not have any other pertinent physical findings, complications, or signs or symptoms related to his condition. It was noted that the Veteran had scars related to his condition, but that they were not painful or unstable, did not have a total area equal to or greater than 39 square cm (6 square inches), and were not located on the head, face, or neck. The examiner indicated that there was a 27 cm by 0.2 cm scar on the midline of the Veteran's abdominal wall and an 11 cm by 0.2 cm scar on the right lower quadrant of his abdomen. The diagnosis was a ventral hernia. The examiner indicated that the Veteran's hernia condition impacted his ability to work in that he had difficulty with bending and heavy lifting. A subsequent February 2017 computed tomography scan, as to the Veteran's abdomen, from St. Joseph's Imaging, relates an impression of multiple abdominal well hernia defects containing loops of small bowel, but not causing obstruction, and bilateral inguinal hernias containing fat. Viewing the evidence, the Board finds that there is a reasonable basis for finding that the Veteran's ventral incisional hernia warrants a 20 percent rating under Diagnostic Code 7339. The examiner, pursuant to the February 2017 VA hernias examination report, specifically found that there was an indication for a supportive belt and that the Veteran's incisional hernia could be well supported by a truss or belt. The examiner, at that time, also referred to an October 2012 statement from Dr. Copeland which notes that the Veteran was required to wear a supportive belt and binder because of abdominal strain, pain due to scars, and a severely weakened abdominal wall, and to a June 2016 VA treatment entry which relates an assessment that included a reference to ordering abdominal binders. The Board observes that the examiner further stated that a February 2017 ultrasound, as to the Veteran's abdomen, indicates, as to an impression, that no herniation of the bowel was identified in the anterior abdominal wall in the indicated area of pain and tenderness. The Board notes that a subsequent February 2017 computed tomography scan, as to the Veteran's abdomen, from St. Joseph's Imaging, relates an impression of multiple abdominal well hernia defects containing loops of small bowel, but not causing obstruction, and bilateral inguinal hernias containing fat. The Board also observes that statements from Dr. Copeland dated in June 2011, October 2012, and February 2017, respectively, all indicate that the Veteran had a weakened abdominal wall and the need for a supporting belt and/or supporting belt and binder. The February 2107 statement from Dr. Copeland also maintained that the Veteran had a current hernia sac on the right side and that he had the possibility of recurrent ventral incisional hernias due to his weakened abdominal wall. A prior May 2010 VA digestive conditions examination report notes that the Veteran was wearing an abdominal binder. Therefore, the Board finds that the Veteran has symptomatology such as a post-operative ventral hernia, not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wounds with weakening of the abdominal wall and an indication for a supporting belt, which are indicative of a 20 percent rating under Diagnostic Code 7339. The Board observes that the evidence does not show that the Veteran has a large hernia, not well supported by a belt under ordinary conditions, as required for a 40 percent rating under Diagnostic Code 7339. There is simply no evidence of a current large hernia. Therefore, a rating in excess of 20 percent is not warranted for that period. Thus, an increased rating to 20 percent, throughout the appeal period, except for the period from March 9, 2010, to May 31, 2010, during which the Veteran was assigned a temporary total rating, is granted. ORDER A 20 percent rating is granted for a ventral incisional hernia, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs