Citation Nr: 20022060 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 07-06 335A DATE: March 30, 2020 ORDER Entitlement to an initial compensable rating for a hernia condition is denied. FINDING OF FACT The Veteran’s hernia condition is not manifested by symptoms showing that the hernia is not well supported by a belt under ordinary conditions, or by a weakening of the abdominal wall and an indication for a supporting belt. CONCLUSION OF LAW The criteria for a compensable rating for a hernia condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7339. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to July 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2011 and February 2013, the Board remanded this matter so that a statement of the case could be issued. In April 2014 and September 2016, the Board remanded to schedule the Veteran for a videoconference hearing. In June 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing and a transcript is of record. In July 2018, the Board remanded the claim for further development, which has been completed. 1. Entitlement to an initial compensable rating for a hernia condition is denied The Veteran contends that his service-connected hernia condition warrants a compensable rating. The Veteran was assigned a temporary 100 percent rating for his hernia condition from August 17, 2005 to October 31, 2005, and 0 percent thereafter. See December 2006 rating decision. The appeal period begins on November 1, 2005. Under the applicable diagnostic criteria, a rating of 0 percent is for assignment for wounds, postoperative, healed, with no disability, and belt not indicated. 38 C.F.R. § 4.114, Diagnostic Code 7339. A rating of 20 percent is for assignment where the hernia is small, not well supported by a belt under ordinary conditions, or for a healed ventral hernia or post-operative wounds with weakening of the abdominal wall and indications for a supporting belt. A rating of 40 percent is for assignment where the hernia is large, and not well supported by a belt under ordinary conditions. A 100 percent rating is for assignment for a hernia that is massive, with 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. Turning to the records, on August 11, 2005, the Veteran underwent a surgery for laparoscopic ventral hernia repair with mesh. Multiple hernias were found and repaired. A letter dated August 16, 2005 written by VA physician states that the Veteran would be unable to return to work for 6 weeks following the hernia repair surgery. An August 2005 VA general surgery clinic progress note wrote that the Veteran is doing well status post hernia repair. The clinician noted that the Veteran uses abdominal binder, and is not requiring pain medication at the moment. The clinician noted that the wounds look clean and healed with no signs of infection. In an August 2005 VA general surgery attending note, a physician noted that the Veteran is doing well and is without complaints. The physician noted that the Veteran’s wounds are healed and there is no sign of infection or erythema. The physician noted that the Veteran will continue with binder for a total of six weeks, and to check in with the hospital in three to four months. The Veteran was afforded a VA examination in December 2005. The Veteran reported that pain began two weeks after the ventral hernia repair. He reported that the pain is crampy and sharp, lasts several seconds, and recurs a few times a day, twice a week. He reported that he has a constant dull ache on the lower abdomen. The examiner noted, “surgical scar mid abdomen above and below naval measures 21 cm, well healed no hernia, no defect.” A February 2006 VA general surgery attending note wrote that the Veteran was seen in the emergency room because of some chronic left-sided abdominal pain after a ventral hernia repair. The clinician noted that evaluation revealed a normal abdominal exam with CT scan that was interpreted as normal post-operation changes without evidence of recurrent hernias. The Veteran was afforded a VA examination in September 2006. The examiner noted that the Veteran has mild to moderate pain in the left side of the abdomen about a few times a month for a few days. The examiner noted that an abdominal x-ray and CT of abdomen in February 2006 showed no significant pathology. The examiner noted that surgical scar in the mid abdomen measuring 21cm x 0.5cm was well healed. The examiner also noted there were five 1cm-long linear laparoscopic scars in the right upper quadrant, right mid quadrant, right left quadrant, left upper quadrant, and in the left lower quadrant. Physical examination revealed all scars were hyperpigmented and well healed; no hernia, no defect, nontender, no adherence, no elevation, and no inflammation were found. In an October 2008 VA general surgery outpatient consultation, the Veteran reported he has had dull pain at the umbilical area since the 2005 hernia repair. The Veteran also reported some occasional sharp pain inferolateral to the umbilicus. Physical exam revealed that the abdomen is soft, mildly protuberant, and non-distended; there was some point tenderness around the umbilicus in the scar; there was no evidence of erythema or recurrence. The assessment was noted as no hernia recurrence and no inflammatory processes. In a November 2009 VA general surgery outpatient consult note, the Veteran complained of periumbilical and right lower quadrant pain. The clinician noted that CT scan of abdominal/pelvis in October 2009 was negative for mass/obstruction, and mesh in place with no evidence of recurrent hernia. The clinician noted that recent significant weight gain was likely pulling on internal mesh, resulting in abdominal pain. In a November 2009 VA addendum note, the clinician noted that abdominal exam is unremarkable for tenderness, rebound or guarding, masses, or hernia. The clinician noted that CT scan in October 2009 showed umbilical hernia containing omentum. A December 2009 VA general surgery note wrote that the Veteran complained of pain in the umbilical area six weeks ago; he was placed on analgesics and has since considerably improved. Physical exam revealed a long midline incision with no palpable area of recurrence. The clinician noted that the Veteran’s CT scan indicated a possible umbilical area of recurrence; his symptomatology improved and needs nothing further in relation to the hernia at this point. The Veteran was afforded another VA exam in January 2010. The examiner noted that extensive workup at Miami VA Medical Center showed hernia repair with mesh intact; significant weight gain was likely pulling on internal mesh and resulting in abdominal pain. The examiner noted that a recent CT scan showed evidence of an umbilical hernia which did not need further attention at this time. Physical exam revealed a midline hernia. It was noted that a truss or a belt was not indicated. The diagnosis or etiology of problem was described as status post hernia repair with residual pain. An October 2010 VA internal medicine note wrote that the Veteran complained of intermittent abdominal pain in the region of his umbilical hernia at increasing frequency. The physician noted that previous CT scan confirmed an umbilical hernia with omentum; follow up CT showed stable small fat containing umbilical hernia. The physician noted that there was no evidence of a bowel containing hernia. In an October 2010 VA gastrointestinal general note wrote, the impression for CT was noted as, “stable small fat containing umbilical hernia. No evidence of a bowel containing hernia. Surgical mesh in place in the anterior abdominal wall. Fatty liver.” The physician noted that given the insignificant findings on the abdomen CT, he would not further pursue with any investigations. The physician noted that he suggested to follow up with the gastrointestinal clinic should pain symptoms recurred. In a November 2010 VA general surgery note, the Veteran complained that he continued to have pain; it was less pain than before, but continued to have discomfort. Physical examination revealed that his abdomen was soft, obese, and non-distended. Some tenderness in lower abdomen was noted. The clinician noted that CT scan showed recurrent hernia, but felt that the tacks are in place. The clinician offered to re-explore him to ensure he does not have recurrence; the Veteran wanted to wait at this time. In a November 2013 VA hepatology consult note, abdominal pain due to mesh was noted; no hernia was noted. At the June 2018 videoconference hearing, the Veteran testified that his hernia condition has worsened since the last VA examinations in 2009 and 2010. He indicated that he felt more pain and that his hernia was protruding. He stated that he was told he has a couple of small hernias and the only way to repair them is to have surgery. The Veteran indicated that he was willing to report to a new examination. The Veteran was afforded a VA examination in May 2019. The examination report noted that the Veteran was diagnosed with recurrent ventral hernia occurring on the right and left margins of the mesh repair. The report noted current symptoms of abdominal pain that is worse with vigorous activity; no gastrointestinal symptoms were noted. The recurrent hernia was marked as irremediable as it was deemed unadvisable by general surgery consult. On examination, no hernia was detected. The report also noted that indication for support was not found. No other pertinent physical findings, complications, conditions, signs, or symptoms related to the hernia were found. After having carefully reviewed the cumulative evidence of record, the Board finds that the Veteran’s hernia does not more nearly approximate the criteria for the assignment of a compensable rating. To warrant a compensable rating, the evidence would need to show a small hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. However, such was not shown at any time during the appeal period. The December 2005 VA examination report and VA records up to 2008 noted that there was no hernia; a November 2009 VA record noted umbilical hernia containing omentum; the January 2010 VA examiner noted a midline hernia with no indication of belt or truss; a June 2011 VA record noted stable, small fat containing umbilical hernia; a November 2013 VA hepatology consult noted no hernia; and the May 2019 VA examination report also noted no hernia, and no indication for support. Throughout the appeal period, more often than not, the evidence of record revealed no hernia. While the record contains evidence indicating an umbilical hernia with omentum or fat, there is no evidence of record suggesting the Veteran required any support by a belt as contemplated under Diagnostic Code 7339 for a compensable rating. Given that there is no objective evidence of record indicating the need for support with a belt, a compensable rating is not warranted for the Veteran’s service-connected hernia condition. Finally, the Board has considered the representative’s assertion that a compensable rating is warranted due to functional loss. The September 2006 and May 2010 VA examination reports show the Veteran’s hernia pain did not result in occupational impairment. Rather, his knee condition reportedly had a negative impact on his occupational functioning, to the point of causing him to stop working. In a similar fashion, the May 2019 VA examination report reflects that the Veteran is although the Veteran still not employed, his hernia resulted in no more than 0-1 week work time lost in last 12 months; the only other functional impact noted was the avoidance of heavy lifting. The Board finds a higher rating would not be warranted based on consideration of functional loss, even if such consideration were appropriate in this case. In sum, the preponderance of the evidence is against a compensable rating for the Veteran’s hernia condition at any time during the appeal period. As such, the benefit of the doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.