Citation Nr: 18152633 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 17-38 180 DATE: November 23, 2018 ORDER Service connection for residuals of a gallbladder surgery, claimed as secondary to status-post incisional hernia repair with history of repaired omphalocele (umbilical hernia), is denied. A compensable rating for status-post incisional hernia repair with history of repaired omphalocele (umbilical hernia) is denied. FINDINGS OF FACT 1. The weight of the competent lay and medical evidence is against finding that the Veteran’s gallbladder condition is related to his in-service hernia repair surgery and or was caused or aggravated by his service-connected residual scar. 2. The Veteran’s scar status-post incisional hernia repair with history of repaired omphalocele (umbilical hernia) is not on the head, face, or neck, not unstable or painful, and is less than 39 square cm. CONCLUSIONS OF LAW 1. The criteria to establish service connection for residuals of a gallbladder surgery are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for entitlement to a compensable rating for a scar status-post incisional hernia repair with history of repaired omphalocele (umbilical hernia) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to April 1989. The Board initially notes that the Veteran is service-connected for status-post incisional hernia repair with history of repaired omphalocele (umbilical hernia) rated as noncompensable pursuant to DC 7805. The Veteran is not service-connected for any disability other than the residual scar. Notably, in an August 2011 decision, the Board denied service connection for stomach lesions and gastrointestinal reflux disease (GERD) secondary to service-connected abdominal hernia repair. Here, the Board acknowledges the argument set forth by Veteran and his attorney, namely, that other residuals such as GERD, abdominal scarring, recurrent blood and gas, dysphagia, and discomfort should be considered; however, this argument pertains to whether entitlement to service connection is warranted for these conditions, which are not part and parcel of the increased rating claim for a scar currently on appeal. Furthermore, these arguments were raised after March 2015 (see e.g., March 2017 Medical Treatment Record – Non-Government Facility). The Veteran never filed a claim for these issues subsequent to the Board’s August 2011 denial of his claims for GERD and stomach lesions, and those are not on appeal. On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Accordingly, the Board invites the Veteran to submit a formal claim for these conditions. Service Connection – Applicable Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). Gallbladder Surgery and Residuals Thereof The Veteran asserts that his gallbladder surgery and residuals thereof were caused by his service-connected hernia repair. However, as discussed in detail above, the Veteran is not service-connected for any residuals other than a scar. Here, the Veteran initially claimed entitlement to a temporary total (100 percent) disability rating for his gallbladder surgery; however, once he was notified that he was never service-connected for a gallbladder disability, he amended his claim as entitlement to service connection secondary to his service-connected hernia repair. See May 2015 VA 21-526EZ, Fully Developed Claim (Compensation). As aforementioned, the Veteran is only service-connected for a residual scar; however, the Board considered whether there is any evidence of a relationship between the gallbladder surgery and the Veteran’s in-service hernia repair surgery. The Veteran underwent a gallbladder surgery in February 2015. See e.g., VA treatment records dated in January 2016. After a careful review of all the evidence, the Board finds that service connection is not warranted as there is no objective medical evidence showing any relationship between the service-connected post-status hernia repair scar or his in-service hernia repair surgery and his gallbladder surgery. The Veteran’s service treatment records are silent to any complaints, treatments, or diagnoses of a gallbladder condition. In addition, a review of the post-service medical evidence does not mention any relationship between the Veteran’s in-service hernia repair surgery or residuals thereof, especially not his service-connected scar, and his subsequent gallbladder surgery or residuals thereof. Moreover, although the Board acknowledges the Veteran’s lay reports that his gallbladder condition is related to his hernia repair surgery, he has not identified any evidence in support of this statement. Nor has he provided any explanation for why or how he believes the conditions are related other than his initial belief that he was already service-connected for a gallbladder disability. A mere conclusory generalized lay statement that a service event or illness or a service-connected disability caused the claimant’s current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). Therefore, the Board finds the Veteran’s lay opinion regarding nexus is not competent or probative, as he is not shown to possess the necessary medical knowledge or expertise to render a medical opinion regarding a potential relationship between two medical conditions. The Veteran has not been provided with VA examinations for his claimed condition. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Here, there is simply no lay or medical evidence establishing that an event, injury, or disease occurred in service for the gallbladder condition. Furthermore, while the Veteran was provided with VA examination to determine what residuals he suffered from as a result of his in-service hernia repair surgery, at no point a gallbladder condition was noted as related to the surgery done decades earlier. A mere conclusory generalized lay statement that military service or a service-connected disability caused the claimant’s current condition is insufficient to require an examination under McLendon. Waters, 601 F.3d at 1278-79 (rejecting appellant’s argument that his “conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C. § 5103A(d)(2)(B).]”). Based on the foregoing, the Board finds that service-connection for a gallbladder condition is not warranted. “[A] claimant has the responsibility to present and support a claim for benefits.” See 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant’s general evidentiary burden to establish all elements of the claim). As the preponderance of the evidence is against the claim, it must be denied. Increased Rating Claim Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria and Analysis As previously discussed, the Veteran is service-connected for status-post incisional hernia repair with history of repaired omphalocele (umbilical hernia) pursuant to DC 7805. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DCs 7800-7805. The Veteran’s service-connected scars are currently rated under DC 7805, which pertains to other scars, including linear scars, and other effects of scars. 38 C.F.R. § 4.118, DC 7805. The Board will consider not only the criteria under the currently-assigned DC, but also the criteria set forth in other potentially applicable DCs. Under DC 7801, pertaining to scars not of the head, face, or neck that are deep and nonlinear, a 10 percent evaluation is assigned when the area(s) is at least 6 sq. inches (39 sq. cm) but less than 12 sq. inches (77 sq. cm). A 20 percent evaluation is assigned when the area(s) is at least 12 sq. inches (77 sq. cm) but less than 72 sq. inches (465 sq. cm). A 30 percent evaluation is assigned when the area(s) is at least 72 sq. inches (465 sq. cm) but less than 144 sq. inches (929 sq. cm). A 40 percent evaluation is assigned when the area(s) exceeds 144 sq. inches (929 sq. cm). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, a maximum schedular evaluation of 10 percent is warranted for superficial, nonlinear scars not of the head, face, or neck with an area(s) of 144 sq. inches (929 sq. cm) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, which applies to scars that are unstable or painful, a 10 percent evaluation is warranted for one or two scars that are unstable or painful. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. A 30 percent evaluation is warranted for five or more scars that are unstable or painful. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under DC 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, DC 7804. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. VA received the Veteran’s increased rating claim in September 2013, in which he stated that his condition worsened since his last examination. Thereafter, in an April 2014 “buddy statement,” the Veteran’s spouse reported many symptoms he experienced, but had not mentioned his service-connected scar. In April 2014, the Veteran underwent a VA examination to assess the severity of his service-connected scar. The examiner confirmed a diagnosis of residual scar status-post ventral hernia repair. The Veteran denied any recurrent hernia, and the examiner noted that the scar was not painful, unstable with frequent loss of covering of skin over it, and was not both painful and unstable. On physical examination, the scar was described as vertical right of midline on the anterior trunk, superficial non-linear, measuring 18 cm long and 0.4 cm in wide, with an approximate total area of 7.2 cm. The examiner concluded that the scar caused no functional limitation and did not affect the Veteran’s ability to work. As aforementioned, while the Board acknowledges the Veteran’s reports of other symptoms not related to his service-connected scar, which he believes are related to his in-service hernia repair surgery, these claims are not in appellate status, and these symptoms are not attributed to the service-connected residual scar disability. (Continued on Next Page) Based on the foregoing, the Board finds that a compensable rating for the Veteran’s service-connected residual scar is not warranted. The Veteran’s scar is not on the head, face, or neck; the affected area of the scar is less than 39 sq. cm; and the scar is not unstable or painful. Based on the totality of the symptoms, the Veteran’s scar does not warrant a compensable rating under DC 7800-7805. As the preponderance of the evidence is against the claim, it must be denied. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel